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Health And Care Act 2022

Contents

Commentary on provisions of the Act

Part 1: Health Service in England: Integration, Collaboration and Other Changes

NHS England

Section 1: NHS Commissioning Board renamed NHS England

  1. Section 1 changes the legal name of the National Health Service Commissioning Board to NHS England. Schedule 1 contains consequential amendments which amend other legislation to change references to the NHS Commissioning Board to NHS England.

Schedule 1: Renaming of NHS Commissioning Board

  1. This Schedule amends a number of enactments to reflect the name change of the National Health Service Commissioning Board to NHS England. All references in the relevant enactments to either "the National Health Service Commissioning Board", "The National Health Service Commissioning Board", "the National Health Service Commissioning Board ("the Board")", "The Board" or "the Board" are substituted for "NHS England". Any references to "The Board’s" are substituted for "NHS England’s" and other consequential name changes are made to specified primary legislation including some Welsh language text.

Section 2: Power to Require Commissioning of Specialised Services

  1. Section 2 amends section 3B of the NHS Act 2006. This section relates to the power of the Secretary of State to require NHS England to commission certain specialised services that are not appropriate for commissioning by CCGs (or, now, integrated care boards)– for example, patients with rare cancers, genetic disorders or complex medical or surgical conditions.
  2. Under subsection (2), the test for the Secretary of State to prescribe a service to be commissioned by NHS England is amended to clarify that the Secretary of State can prescribe a service if they deem it appropriate for NHS England to commission it whether or not NHS England commissions the service itself or arranges for another body to commission the service under sections 13YB or 65Z5 of the NHS Act 2006.
  3. Subsection (3) removes the requirement for Secretary of State to consider the financial implications for CCGs if they were required to arrange for the provision of the service or facility.
  4. Subsection (4) requires the Secretary of State to explain to NHS England their reasoning, if he refuses a request from NHS England to revoke provisions made in regulations that prescribe services or facilities which NHS England must commission.

Section 3: Spending on Mental Health

  1. Section 3 inserts new section 12F into the NHS Act 2006
  2. New section 12F sets out a requirement for the Secretary of State to publish and lay before Parliament each financial year a document setting out whether the Secretary of State expects there to be an increase, in comparison to the previous financial year, in (i) the amount of expenditure incurred by NHS England and integrated care boards (taken together) in relation to mental health and (ii) the proportion of the expenditure incurred by NHS England and integrated care boards (taken together) that relates to mental health, and provide an explanation.
  3. New section 12F(2) commits the Secretary of State to publish and lay the documents before the start of the financial year to which it relates.
  4. Sub-section(3) inserts a new subsection (2B) into section 13U (annual report) of the NHS Act 2006, which requires NHS England to set out in their annual report a) the amount of expenditure incurred by NHS England and integrated care boards during the year (taken together) in relation to mental health; and b) a calculation of the proportion of the expenditure incurred by NHS England and integrated care boards during the year (taken together) that relates to mental health; and to c) provide an explanation of both.

Section 4: NHS England Mandate: general

  1. Section 4 amends sections 13A 13B, 13T and 13U of the NHS Act 2006. Subsections (2)(a) and (b) remove the requirement for a mandate to be set before the start of each financial year, providing flexibility on when a mandate may be set, and how long it may continue to have statutory force.
  2. Section 4(2)(c) omits subsections (3) and (4) from section 13A, removing the requirement on the Secretary of State to specify in the mandate the financial limits set for the purposes of section 223D.
  3. Section 4(2)(d) amends section 13A(5) to allow the Secretary of State to specify the matters which the Secretary of State proposes to assess NHS England’s performance against, and removes the limit for this to apply for only the first financial year to which the mandate relates.
  4. Section 4(2)(e) inserts new subsections (6A) and (6B) into section 13A, providing that the Secretary of State may revise the mandate and making clear that any revised mandate must be published and laid before Parliament.
  5. Section 4(3) amends section 13B, omitting subsections (2) to (5). This removes the requirement for the mandate to be revised where the Secretary of State varies financial directions given under section 223D. It also removes the limitations as to when the Secretary of State may revise the mandate.
  6. Section 4(4) amends section 13T(3) and inserts new subsection (3A) into section 13T, making clear that NHS England is not required to revise its business plan should the mandate be revised during the period that the plan relates to.
  7. Section 4(5) substitutes paragraph (a) of subsection (2) of section 13U to require NHS England to set out in its annual report the extent to which it met any objectives or requirements set out in any mandates covering the relevant financial year.

Section 5: NHS England mandate: cancer outcome targets

  1. Section 55 adds a further requirement to section 13A of the NHS Act 2006, relating to the content of the mandate. Specifically, it requires the Secretary of State to include objectives relating to cancer outcomes in the mandate.
  2. Section 55(2) inserts a new subsection (2A) in section 13A, providing that the mandate must include objectives relating to outcomes for cancer patients. It further sets out that these objectives should be treated by NHS England as having priority over any other objectives included in the mandate that relate specifically to cancer.

Section 6: Duties as to reducing inequalities

  1. Section 6 amends section 13G of the NHS Act 2006 to make it clear that NHS England’s duty in relation to the reduction of inequalities in access to health services covers people before they are patients. It also makes it explicit that the duty to have regard to the need to reduce inequalities in outcomes for patients covers outcomes described in section 13E(3), such as the quality of experience undergone by patient.

Section 7: Duties in respect of research: business plan and annual report etc

  1. This section amends the NHS Act 2006 to make further provisions relating to the research duty of NHS England. This section clarifies that NHS England’s duty to promote research in the exercise of its function includes doing so by facilitating research. Section 40 in the Act similarly amends the wording of the research duty of the Secretary of State. Section 25 creates a corresponding research duty on integrated care boards.
  2. The section also amends the existing provisions in the NHS Act 2006 for NHS England to publish a business plan and annual report so that they must include an explanation of how NHS England proposes to discharge or has discharged, respectively, its duty to facilitate or otherwise promote research.

Section 8: NHS England: Wider effect of Decisions

  1. Duty to have regard to effect of decisions – this provision, which is inserted into the NHS Act 2006 as the new section 13NA, sets out a new duty for NHS England. A similar new duty also applies to integrated care boards (new section 14Z43), NHS Trusts in England (new section 26A) and NHS Foundation Trusts (new section 63A).
  2. This duty has been described operationally as the "triple aim" duty.
  3. Section 13NA(1) provides that NHS England will be under a duty, in making a decision about the carrying out of their functions, to have regard to all likely effects of their decisions on three areas: the health and well-being of the people of England (paragraph (a)), the quality of services provided or arranged by relevant bodies (paragraph (b)) and the efficiency and sustainability of resources used by the relevant bodies (paragraph (c)).
  4. The reference in the subsection to "all" likely effects means that NHS England will have to consider, under paragraphs (b) and (c), the effects of the decision both on its own quality of services and resource use and those of other relevant bodies.
  5. Section 13NA(2) excludes decisions relating to services provided to a particular individual (e.g. individual clinical decisions or highly specialist commissioning decisions concerning an individual patient) from this duty. Under paragraphs (b) and (c), it also specifies that when complying with the Triple Aim duty, NHS England must consider inequalities in health and well-being and the benefits of services when considering the effects of their decisions on the areas in sections 13NA(1)(a) and (b).
  6. Section 13NA(3) provides that NHS England must have regard to guidance on the discharge of this duty that it publishes (under section 13NB).
  7. Section 13NB gives NHS England a power to publish guidance on the discharge of the Triple Aim duty by NHS England, integrated care boards, NHS Trusts and NHS Foundation Trusts and requires NHS England to consult those who they view as appropriate when producing or revising the guidance.

Section 9: Duties in relation to climate change etc.

  1. This section introduces a new duty on NHS England that requires it to have regard to how it can contribute to the achievement of the government’s legislative targets regarding the environment and climate change. These are specified as: the target set under section 1 of the Climate Change Act 2008 (the Net Zero emissions targets, currently set for 2050) and the targets set under section 5 of the Environment Act 2021, which pertain to such matters as air quality, water quality and species abundance (among others). In addition, the duty requires NHS England to have regard to how it may support efforts to adapt to the predicted impacts of climate change as set out in the reports brought forward under section 56 of the Climate Change Act 2008. The duty applies when NHS England is exercising any of its functions. Section 13ND gives NHS England a permissive power to issue guidance on the climate change duties placed upon it, Trusts, Foundation Trusts and integrated care boards, and how those duties are to be discharged. Section 10: Public involvement and consultation: carers and representatives
  2. This section amends section 13Q of the NHS Act 2006, which requires NHS England to involve individuals to whom health services are provided when exercising its commissioning functions. Following this amendment to subsection (2), NHS England is required to also involve carers and representatives of those individuals to whom health services are provided when exercising its commissioning functions. The term "carer" is broad in order to ensure it captures all groups of carers, including young carers and parent carers who provide care, unpaid, for a friend or family member who has needs for example arising from a disability, impairment or long term health condition.

Section 11: Information about inequalities

  1. Section 11 inserts section 13SA into the NHS Act 2006. This requires NHS England to publish a statement describing the powers that certain NHS bodies have to collect, analyse and publish information relating to inequalities in accessing health services and in respect to the outcomes achieved for them by the provision of health services. The statement must also set out NHS England’s view on how those powers should be exercised. The relevant bodies are integrated care boards, English NHS trusts, and NHS foundation trusts. The annual reports for the relevant bodies will need to state how far the functions have been exercised consistently with those views.

Section 12: Support and Assistance by NHS England

  1. This section inserts a new section 13YA into the NHS Act 2006. Subsection (1)(a) gives NHS England the power to provide assistance or support to any person providing or proposing to provide services as part of the health service. Subsection (1)(b) gives NHS England the power to give assistance or support to any person exercising functions in relation to the health service. (similar to the Secretary of State’s power in section 254A of the NHS Act 2006).
  2. Subsection (2) clarifies that any assistance provided under subsection (1)(a) or (b) includes making available the services, employees and other resources of NHS England.
  3. Subsection (3) clarifies that any assistance provided under subsection (1)(a) or under subsection (1)(b) to an integrated care board, includes making financial assistance. The insertion of this provision extends the support functions provided by NHS England, placing in statute a provision allowing NHS England to provide direct financial support to providers within the scope of the provisions and integrated care boards.
  4. Subsection (4) gives NHS England the ability to set the terms on which assistance or support under this section is provided based on what it considers appropriate.

Section 13: Exercise of functions relating to provision of services

  1. This section inserts section13YB into the NHS Act 2006. It allows NHS England to direct an integrated care board to exercise any of NHS England’s relevant functions. This is an alternative to entering into section 65Z5 arrangements to allow NHS England to delegate relevant functions to integrated care boards.
  2. Subsection (2) sets out the NHS England functions which integrated care boards can be directed to exercise:
    • Any commissioning function that NHS England has been given by virtue of section 3B(1);
    • Any function beyond those given to NHS England under section 3B(1) that relates to providing primary medical services, primary dental services, primary ophthalmic services or pharmaceutical services specified under Part 7;
    • Any function delegated to NHS England by virtue of section 7A or section 7B, which relate to Secretary of State’s public health functions; and
    • Any other function that may be exercised in connection with the above functions.
    • This last category is designed, for example, to cover NHS England’s power to provide assistance or support under section 13YA.
  1. The Secretary of State will be able to make regulations under section 13YB(3) which can specify any limits or conditions on the functions that NHS England may delegate via directions to integrated care boards under this section.
  2. Subsection (4) gives NHS England powers, when delegating functions to integrated care boards under this section, to limit the ability of integrated care boards to arrange for other bodies to carry out these functions.
  3. NHS England may also make payments to an integrated care board in relation to the exercise of the relevant function (subsection (6)) and give directions regarding the exercise of that function (subsection (7)).
  4. Subsection (8) requires NHS England to publish any directions under subsection (1). This is so that it is clear who is exercising which of these relevant functions – NHS England or integrated care boards. An integrated care board that has been directed to exercise a function as part of these arrangements is liable for the exercise of that function (subsection (9)).

Section 14: Preparation of consolidated accounts for providers

  1. This section amends the NHS Act 2006 inserting new section 65Z4 "Consolidated Accounts for NHS Trusts and Foundation Trusts". This section places into primary legislation the duties previously imposed on Monitor and the TDA to prepare, in respect of each financial year, consolidated accounts of NHS trusts and Foundation Trusts through directions from the Secretary of State in the Consolidated Provider Accounts Directions 2018. Those directions are revoked as a result of the abolition of Monitor and the TDA.
  2. Subsection (2) of section 65Z4 gives the Secretary of State the power to give directions to NHS England on the content and form of the consolidated accounts, and the methods and principles to be applied in preparing them. Under subsection (3) NHS England must send a copy of the consolidated accounts to the Secretary of State and the Comptroller and Auditor and General within such period as the Secretary of State may direct. The Secretary of State can direct that the accounts must be accompanied by any reports or information (sub-section 4).
  3. Under subsection (5), the Comptroller and Auditor General must examine, certify and report on the consolidated accounts and send copies of the report to the Secretary of State and to NHS England. Under subsection (6) NHS England have a duty to lay copies of the consolidated accounts and the related report before Parliament.

Section 15: Funding for service integration

  1. This section makes amendments to sections 223B ("Funding of NHS England") and 223GA ("Expenditure on integration") of the NHS Act 2006 to make provision for a fund for the purposes of service integration, known as the Better Care Fund. Section 223B already places a duty on the Secretary of State to make an annual payment to NHS England which is attributable to the exercise of its functions for that year, and the amendment allows for the Secretary of State to provide directions requiring NHS England to use a specified amount of this annual payment for purposes relating to service integration. Amended section 223GA provides that, where the Secretary of State has given a direction about the use by NHS England of the annual amount paid to them for purposes relating to service integration, that NHS England may direct integrated care boards that a designated amount of the annual payment is to be used for purposes of service integration.
  2. Subsection (2)(a) substitutes subsection (6) of section 223B to allow the Secretary of State to direct NHS England to use a sum paid under that section for purposes relating to service integration in respect of a financial year. This power to direct NHS England replaces the previous requirement to specify this sum in the mandate to NHS England under section 13A.
  3. New subsection (6)(b) of section 223B provides that the Secretary of State may direct NHS England as to how this sum should be used.
  4. Subsection (2)(c) inserts new subsections (7A) and (7B). Subsection (7A) provides that the power to direct NHS England about the use of the sum includes the power to direct them as to the exercise of any of its functions under or by virtue of section 223GA (this includes directions requiring consultation with the Secretary of State or other specified persons). New subsection (7B) requires the Secretary of State to publish any direction that is given under subsection (6) of section 223B.
  5. Subsection (3)(a) substitutes section 223GA(1) and (2) to provide that where the Secretary of State has given NHS England a direction under section 223B(6)(a) about sums paid to it for service integration purposes, NHS England may direct integrated care boards that a designated amount of their financial allocation must be used for purposes relating to service integration. This replaces the requirement for the mandate to specify service integration objectives before NHS England can exercise this power.
  6. Subsection (3)(c) omits subsection (7) of section 223GA which provided that requirements in the mandate relating to service integration could also include requirements to consult the Secretary of State or other specified persons. This has been recreated by inserting (7A) into section 223B.
  7. "Service integration" means the integration of health services with health-related or social care services.

Section 16: Payments in respect of quality

  1. This section repeals subsections (4) and (5) of section 223K of the NHS Act 2006, removing the Secretary of State’s powers to make regulations about payments by NHS England in respect of quality as set out under those subsections. Other subsections of section 223K remain in the NHS Act 2006 including the regulation-making power at subsection (6).

Section 17: Secondments to NHS England

  1. This section inserts paragraph 9A in Schedule A1 to the NHS Act 2006 and amends section 272 of the NHS Act 2006 as a consequence. Subsection (3), which inserts new paragraph 9A, allows NHS England to make arrangements for secondees to NHS England to serve as members of their staff. Through paragraph 9A(3), secondees from a the list of NHS bodies (see paragraph 9A(4)) can be considered as employees of NHS England in respect of references to employees at paragraphs 9, 10 and 13 of Schedule A1. Under paragraph 9A(5), the Secretary of State may by regulations amend paragraph 9A to include other references to employees of NHS England in the Act within this provision as well as setting out further persons of a prescribed description who are seconded to NHS England. Such regulations are subject to the draft affirmative procedure.

Integrated Care Boards

Section 18: Role of Integrated Care Boards

  1. General functions of integrated care boards - This section replaces section 1I of the NHSNHS Act 2006 and sets out that any integrated care board established under Chapter A3 of Part 2 of the NHS Act 2006 has the function of arranging for the provision of services for the purposes of the health service in England. The "health service" means the health service in England.

Section 19: Establishment of Integrated Care Boards

  1. Establishment of integrated care boards (including by re-purposing clinical commissioning groups). This section inserts Chapter A3 into the NHS Act 2006. This Chapter includes new sections 14Z25 to 14Z28 which make provision for the abolition of CCGs and the establishment of integrated care boards; new section 14Z29 which concerns the publication of an integrated care board’s constitution; and new section 14Z30 which concerns the management of conflicts of interest.
  2. Duty to establish integrated care boards. New section 14Z25 requires NHS England to establish integrated care boards (subsection (1)) by issuing an establishment order for each relevant area in England (subsection (2)). Under subsection (3), the geographical boundaries of each integrated care board may not coincide or overlap. Under subsection (4), all areas of England must have an integrated care board on, and after, the day of commencement for these provisions, which will be set out in regulations (subsection (9)). Under subsection (5), the establishment order referred to in subsection (2) must either include the integrated care board’s constitution, or reference where the integrated care board’s constitution is published. Under subsection (7), NHS England is required to consult with any integrated care board that might be affected before varying or revoking an establishment order. Further information about the requirements for integrated care board constitutions can be found in Schedule 1B of the NHS Act 2006.
  3. Process for establishing initial integrated care boards. New section 14Z26 subsection (1) requires NHS England to publish a list of the initial areas where integrated care boards are to be established. Under subsection (2), the existing CCG or CCGs in those areas are required to propose a constitution for the new integrated care board to be established in their area, for consideration by NHS England. Under subsection (3), in developing a constitution, CCGs must consult with any persons they consider appropriate to consult with. Under subsection (4), NHS England must give effect to a proposed constitution unless NHS England consider the proposal inappropriate. NHS England is required to determine the terms of an integrated care board’s constitution if a CCG or group of CCGs propose an inappropriate constitution or fail to consult appropriately on the terms of the constitution. Subsection (5) states that nothing in this section prevents NHS England from establishing the first integrated care board in a case where the relevant clinical commissioning group or groups have failed within a reasonable period to make a proposal under subsection or limits the re-exercise of the power in section 14Z25. Under subsection (6), NHS England can publish guidance for CCGs concerning the process for establishing initial integrated care boards, to which CCGs are required to have regard under subsection (7).
  4. Abolition of clinical commissioning groups. Under new section 14Z27, all CCGs will be abolished on an appointed day (subsection (1)), which will be the same day NHS England’s duty to establish integrated care boards commences and will be defined in regulations (subsection (2)).
  5. Transfer schemes in connection with integrated care boards. New section 14Z28 contains provision about schemes for the transfer of staff, property, rights and liabilities in connection with the establishment of integrated care boards and abolition of CCGs. Transfer schemes in connection with the establishment of integrated care boards may transfer property, rights or liabilities from NHS England, an NHS trust, an NHS foundation trust or a Special Health Authority to the board. NHS England can also make transfer schemes in connection with the variation of the constitution of an integrated care board, or the abolition of an integrated care board where property, rights or liabilities can be transferred to NHS England or another integrated care board. Under subsection (5), NHS England is required to ensure that all property, rights and liabilities (except criminal liabilities) of CCGs are transferred to one integrated care board, if the CCG’s area coincides with that integrated care board’s area, or to one or more integrated care boards if the areas do not coincide. Rights and liabilities include rights and liabilities relating to contracts of employment. Subsection (7) contains a list of things a transfer scheme may do, including make provision which is the same as or similar to the Transfer of Undertakings (Protection of Employment) Regulations 2006, which includes certain protections of employment rights for transferred staff.
  6. Duty for integrated care board to publish constitution. Under new section 14Z29, each integrated care board is required to publish its constitution, including when it is updated or varied.
  7. Register of interests and management of conflicts of interests. New section 14Z30 subsection (1) requires each integrated care board to maintain and publish (or make arrangements for access to) a register of any interests of its board members, committee or sub-committee members, and its employees. Each integrated care board must ensure that any potential conflicts of interest that may affect the board’s decision-making when commissioning services are declared promptly (subsection (3)) and managed effectively (subsection (4)).

Schedule 2: Integrated care boards: constitution etc.

  1. Section 19 also inserts a new Schedule 1B into the NHS Act 2006, which sets out further detail about integrated care boards, their constitutions and minimum governance arrangements as well as consequential amendments.
Part 1
  1. Part 1 concerns the constitutions of integrated care boards. Every integrated care board must have a constitution (paragraph (1)) that specifies its name and the area for which it is established (paragraph (2)). Under paragraph (3), the constitution must also set out the minimum requirements for membership of the board of the integrated care board, which must include a chair, a chief executive and at least three other members, known as "ordinary members". Paragraph (4) sets out that the constitution must specify that an integrated care board must not appoint a person as member of an integrated care board if that appointment could reasonably be regarded as undermining the independence of the NHS because of their involvement in the private health sector or otherwise.
  2. Under paragraph (5), the chair of the integrated care board will be appointed by NHS England, with the approval of the Secretary of State. Under paragraph (6), the constitution must not provide for anyone other than NHS England to remove the chair from office. The power for NHS England to remove the chair from office must be subject to the approval of the Secretary of State.
  3. Under paragraph (7), the chief executive must be appointed by the chair, with the approval of NHS England. The constitution should set out that the chief executive must be an employee of the integrated care board.
  4. Under paragraph (8), the constitution must detail by whom the ordinary members of the integrated care board will be appointed and state that the chair must approve the appointments of the ordinary members (sub-paragraph (1)).
  5. The ordinary members of the integrated care board must, at a minimum, include:
    • At least one member jointly nominated by NHS trusts and NHS foundation trusts that provide services within the area of the integrated care board (sub-paragraph (2)(a));
    • At least one member jointly nominated by persons who provide primary medical services within the area of the integrated care board and are of a prescribed description (sub-paragraph (2)(b)); and
    • At least one member jointly nominated by the local authorities within the area of the integrated care board and are of a prescribed description (sub-paragraph (2)(c)).
  1. These members are to be appointed by the chair. The constitution must detail how the process of nominating representatives should operate (sub- paragraph (3)). NHS England may publish guidance about this process, to which the persons involved must have regard (sub-paragraph (4)).
  2. Under subsection (5) the descriptions of trusts or other persons that may be prescribed for the purposes of sub-paragraph (2)(a) or (b) may, in particular, be framed by reference to the nature of the services that they provide or the proportion of their services that are provided within the integrated care board’s area.
  3. Under subsection (6), the chair must exercise the approval function mentioned in sub-paragraph (1)(b) with a view to ensuring that at least one of the ordinary members has knowledge and experience in connection with services relating to the prevention, diagnosis and treatment of mental illness.
  4. Under paragraph (9), the constitution may include further details concerning the membership of the integrated care board such as how members are to be appointed and the conditions of membership (e.g. tenure, remuneration, eligibility for re-appointment). Under paragraph (10), further requirements in relation to the constitution may be set out in regulations, which the integrated care board must adhere to.
  5. Under paragraph (11), the constitution must detail how the integrated care board will discharge its functions and may provide for committees or sub-committees of the integrated care board to be formed in order to exercise the board’s functions. For example, this would allow the delegating of budgets and functions to "place"-level committees of the integrated care board as is locally appropriate. These committees and sub-committees may include members who are not board members or employees of the integrated care board. Sub-paragraph (4) prohibits the chair from approving or appointing someone as a member of any such committee or sub-committee if the chair considers that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.
  6. Under paragraph (12), the constitution must also detail the procedure the integrated care board will follow when making decisions and how the board will ensure that decisions are made transparently. Paragraph (13) requires the constitution to include detail about how it will maintain registers of interests (as required under section 14Z30) and how any conflicts of interest will be identified and managed. The constitution should also detail how the integrated care board will fulfil its duties to involve or consult the public as required under section 14Z45(2) (under paragraph (14)) including a statement of the principles to be followed in implementing such arrangements).
  7. Under paragraph (15), the constitution must detail the process for how the constitution can be amended. This must include provision allowing NHS England to approve any amendments to the constitution as well as provision for NHS England to amend the constitution on its own initiative. The intention is for NHS England to issue a model constitution to assist integrated care boards in developing their own. Paragraph (16) sets out that the constitution may make further provision to those matters already listed in Part 1.
Part 2
  1. Part 2 sets out further details about integrated care boards.
  2. Paragraph (17) sets out that an integrated care board is a body corporate, which means it has its own legal rights and responsibilities; and it, and its property, is not to be considered as an agent, or property, of the Crown.
Staff
  1. Under paragraph (18), the integrated care board can appoint employees. The integrated care board may determine the terms and conditions of employment, including details concerning remuneration, and make payments to employees in relation to pensions, allowances or gratuities.
  2. Under paragraph (19), an integrated care board may arrange for individuals to be seconded to it to serve as a member of staff (sub-paragraph (1)). This should not affect the continuity of a person’s employment with the employer from whom they are seconded (sub-paragraph (2)). Secondees may exercise functions of the integrated care board as covered by paragraphs 11 and 18 of the Schedule (sub-paragraph (3)). For the purposes of paragraph 7(2) (the requirement for the chief executive to be an employee) secondees acting as a chair of the integrated care board may be considered an employee if they are a Civil Servant or employed by any of the following bodies: NHS England, an English NHS Trust, an NHS Foundation Trust, an English Special Health Authority, the Care Quality Commissioning, the Health and Social Care Information Centre, the Health Services Safety Investigations Body, the Human Tissue Authority, the Human Fertilisation and Embryology Authority or NICE (sub-paragraph (4)). Regulations may amend the paragraph to provide that other references in the NHS Act 2006 to an employee of an integrated care board also includes persons seconded and also may amend the description of persons who covered by the paragraphs (sub-paragraph (5)). Such regulations would be subject to the draft affirmative procedure.
Additional powers in respect of payment of allowances
  1. Under paragraph (20), an integrated care board may pay appropriate allowances to members of committees or sub-committees of the board who are not a member of the integrated care board, should it consider this to be appropriate.
Externally financed development agreements
  1. Under paragraph (21), an integrated care board may enter into externally financed development agreements. Such agreements for third party funding can be used, for example, for the development of premises for use for the purposes of the health service. This must be certified in writing by the Secretary of State (sub-paragraph (2)). The Secretary of State may certify this if the purpose of the agreement is the provision of services or facilities in connection with the exercise a function of an integrated care board and a person proposes to make a loan or provide finance in relation to the agreement to another party, other than the integrated care board.
Accounts and audits
  1. Under paragraph (22), an integrated care board must keep proper accounts and records of the accounts. It must also prepare annual accounts in respects of each financial year. NHS England, with the approval of the Secretary of State, may direct an integrated care board to prepare accounts for a specified period, by a specified date, and specify how the accounts must be prepared. The Comptroller and Auditor General may examine any annual accounts or accounting reports of an integrated care board.
Incidental powers
  1. Under paragraph (23) integrated care boards can enter into agreements, acquire and dispose of property, and accept gifts (including property) for purposes related to their functions.
Seal and evidence
  1. Where used, the integrated care board’s seal must be authenticated by the signature of an authorised person (paragraph (24)).

Section 20: People for whom integrated care boards have responsibility

  1. Subsection (2) inserts section 14Z31 in the NHS Act 2006. Section 14Z31 provides that NHS England must publish rules for determining the people for whom integrated care boards have responsibility. It is expected that the basis of NHS England’s general rule for integrated care board responsibility will continue to be in relation to GP registration to ensure operational continuity. Section 14Z31(2) ensures that, at a minimum, under the rules published by NHS England, an integrated care board must be identified as responsible for a) everyone who is provided with NHS primary medical services (i.e. anyone who is, for example, registered with a GP) and b) everyone who is usually a resident in England and living in the geography of the integrated care board, even if they are not provided with NHS primary medical services. Subsection (5) defines "NHS primary medical services" for the purposes of subsection (2). Under section 14Z31(3), regulations may create exceptions to these rules. These regulations will be subject to the draft affirmative procedure.
  2. Subsection 20(4) provides that the Secretary of State may, with regulations, change the definition of the people for whom integrated care boards are responsible, inserting a substituted version of section 14Z31. Such regulations will be subject to the draft affirmative procedure.

Integrated Care Boards: Functions

Section 21: Commissioning hospital and other health services

  1. This section amends section 3 of the NHS Act 2006 to require integrated care boards to commission hospital and other health services for those persons for whom the integrated care board is responsible to such extent as it considers necessary to meet the reasonable requirements of those people.
  2. Duties of integrated care boards as to commissioning certain health services. New section 3 requires integrated care boards to commission the specified hospital and other health services to such extent as it considers necessary to meet the reasonable requirements of those persons for whom the integrated care board is responsible. Integrated care boards are responsible for those people specified in accordance with section 14Z31 and any other people who may be prescribed in regulations (subsection (2)). Subsection (3) ensures there is no duty to commission services or facilitate those which are already being commissioned by NHS England, and other integrated care boards. This ensures there is no duplication in the required commissioning arrangements. Under subsection (4), in exercising this function, integrated care boards must act in accordance with Secretary of State and NHS England’s duty to promote a comprehensive health service and any objectives or requirements specified in the NHS mandate published under section 13A.
  3. Power of integrated care boards to commission certain health services. New section 3A allows, but does not require, integrated care boards to arrange for the provision of such services or facilities that it considers appropriate to improving people’s physical or mental health, or preventing, diagnosing and treating illness in those people. Under subsection (2), integrated care boards are responsible for those people specified under section 14Z31 and any other people who may be prescribed in regulations. Under subsection (3), an integrated care board may not arrange for the provision of services that NHS England is required to arrange under sections 3B or 4. Under subsection (4), in exercising this function, integrated care boards must act in accordance with Secretary of State and NHS England’s duty to promote a comprehensive health service and any objectives or requirements specified in the NHS mandate published under section 13A.

Section 22: Commissioning primary care services etc.

  1. This section inserts Schedule 3 which amends the NHS Act 2006 to give integrated care boards responsibility for medical, dental and ophthalmic primary care functions. It contains other amendments relating to primary care services.

Schedule 3: Conferral of primary care functions on integrated care boards etc.

  1. This Schedule confers functions on integrated care boards in relation to primary care services and contains related amendments. It makes amendments to the NHS Act 2006 and consequential amendments to related legislation for the conferral of medical, dental and ophthalmic primary care functions on integrated care boards. Currently, the functions associated with arranging these services sit with NHS England. The intention is that integrated care boards will hold the majority of these functions at an agreed point in the future. NHS England will retain a limited role in oversight and discharging functions that can be most effectively exercised at a national level.
Part 1 - Conferral of functions etc.
  1. Part 1 of this Schedule contains amendments made to the NHS Act 2006.
  2. Under section 3B of the 2006 NHS Act, the Secretary of State can make regulations requiring NHS England to arrange certain services. New paragraphs (za) and (aa) enable the Secretary of State to also require NHS England to commission primary medical services and primary ophthalmic services. This is an addition to the current list of: (a) dental services of a prescribed description; (b) services or facilities for members of the armed forces or their families; (c) services or facilities for persons who are detained in a prison or in other accommodation of a prescribed description; (d) such other services or facilities as may be prescribed.
Primary Medical services
  1. New section 82B of the NHS Act 2006 requires integrated care boards to make the necessary arrangements to secure the provision of primary medical services to meet the reasonable requirements of the persons for whom they are responsible (as defined in section 14Z31 and any other people who may be prescribed in regulations). Regulations under section 82A may set out how primary medical services should be defined for the purposes of this Act. Such regulations would be subject to the negative procedure.
  2. New section 83 provides a general power for integrated care boards and NHS England to make arrangements for the provision of primary medical services to fulfil their section 82B and section 3B(1) obligations respectively.
  3. Section 83A stipulates that each integrated care board and NHS England must publish information about such matters as may be prescribed in relation to the primary medical services provided under this Act.
  4. New section 98A allows the Secretary of State to direct NHS England to exercise any of the Secretary of State’s functions relating to the provision of primary medical services.
  5. New section 98B allows NHS England to direct an integrated care board about the exercise by it of any of its functions under Part 4 (Medical Services) of NHS Act 2006.
Dental services
  1. New section 99 requires integrated care boards to make the necessary arrangements to secure the provision of primary dental services to meet the reasonable requirements of the persons for whom it is responsible (as defined in section 14Z31 and any other people who may be prescribed in regulations). Regulations under section 98C may set out how primary dental services should be defined for the purposes of this Act. Such regulations would be subject to the negative procedure
  2. Section 99A provides a general power for integrated care boards and NHS England to make arrangements for the provision of primary dental services to fulfil their section 99 and section 3B(1) obligations respectively.
  3. When referring to dental services in the context of NHS England’s section 3B(1) responsibilities, it includes both primary and secondary dental services. This is different from primary medical and primary ophthalmic services because section 3B(1) only refers to those services provided in a primary care setting.
  4. New section 99B stipulates that each integrated care board and NHS England must publish information about such matters as may be prescribed in relation to the primary dental services provided under this Act.
  5. New section 114A allows the Secretary of State to direct NHS England to exercise any of the Secretary of State’s functions relating to the provision of primary dental services.
  6. New section 114B allows NHS England to direct an integrated care board about the exercise by it of any of its functions under Part 5 (Dental Services) of NHS Act 2006.
Ophthalmic services
  1. Section 115 is amended by paragraph 29 of Schedule 3. It requires integrated care boards to make the necessary arrangements to secure the provision of primary ophthalmic services to meet the reasonable requirements of the persons for whom it is responsible (as defined in section 14Z31 and any other people who may be prescribed in regulations). Regulations under section 114C may set out how primary ophthalmic services should be defined for the purposes of this Act. Such regulations would be subject to the negative procedure.
  2. Section 116A provides a general power for integrated care boards and NHS England to make arrangements for the provision of primary ophthalmic services to fulfil their section 115 and section 3B(1) obligations respectively.
  3. New section 116B stipulates that each integrated care board and NHS England must publish information about such matters as may be prescribed in relation to the primary ophthalmic services provided under this Act.
  4. New section 125A allows the Secretary of State to direct NHS England to exercise any of the Secretary of State’s functions relating to the provision of primary ophthalmic services.
  5. New section 125B allows NHS England to direct an integrated care board about the exercise by it of any of its functions under Part 6 (Ophthalmic Services) of NHS Act 2006.
Pharmaceutical services
  1. New section 168A allows the Secretary of State to direct NHS England to exercise any of the Secretary of State’s functions relating to services that may be provided as pharmaceutical services, or as local pharmaceutical services, under Part 7 (Pharmaceutical Services and Local Pharmaceutical Services) of the NHS Act 2006.
  2. The provision of pharmaceutical services and local pharmaceutical services under Part 7 are also capable of being delegated from NHS England to integrated care boards via the mechanisms in section 65Z5 (by agreement) or section 13YB(2)(b)(iv) (by direction).
Part 2 – Consequential amendments
  1. Part 2 of this Schedule makes consequential amendments to various legislation relating to primary care to ensure the wider statute book reflects the conferral of medical, dental and ophthalmic primary care functions to integrated care boards. The amendments relate to the following pieces of legislation: Dentists Act 1984, Access to Health Records Act 1990, Trade Union and Labour Relations (Consolidation) Act 1992, Health Service Commissioners Act 1993, Freedom of Information Act 2000, Health and Social Care (Community Health and Standards) Act 2003, Health Act 2006, NHS Act 2006, National Health Service (Wales) Act 2006, Health Act 2009, and the Domestic Abuse Act 2021.

Section 23: Transfer schemes in connection with transfer of primary care functions

  1. This section allows NHS England to make one or more schemes for the transfer of property, rights and liabilities to an integrated care board in connection with the transfer of primacy care functions from NHS England to an integrated care board.
  2. Subsection (2) outlines what is transferrable under a transfer scheme. This includes property, rights and liabilities that could not otherwise be transferred; property acquired, and rights and liabilities arising, after the making of the scheme; and criminal liabilities. This includes provision for employees to be transferred to the integrated care board and allows for provision to be made which is the same as, or similar to, those provided for by the Transfer of Undertakings (Protection of Employment) Regulations 2006, which includes certain protections of employment rights for transferred staff.

Section 24: Commissioning arrangements: conferral of discretions

  1. This section amends section 12ZA of the NHS Act 2006. Section 12ZA makes provision about commissioning arrangements made by NHS England and CCGs (now integrated care boards). Subsection (2A) states that arrangements may confer discretions on a person with whom they are made so, for example, it could allow persons with whom NHS England and integrated care boards have entered into commissioning arrangements to determine the means by which services will be delivered.

Section 25: General functions

  1. Duty to promote the NHS Constitution. Section 14Z32 imposes a duty upon each integrated care board both to act in the exercise of its functions (for example through their commissioning functions) with a view to securing that health services are provided in a way that promotes the NHS Constitution and to promote awareness of the NHS Constitution among staff, patients and the public. This means that not only must integrated care boards act in accordance with the NHS Constitution, but they should ensure that people are made aware of it. They may also do this by contributing, as far as possible, to the advancement of the Constitution’s principles, rights, responsibilities and values, through their actions.
  2. Duty as to effectiveness, efficiency etc. Under section 14Z33, each integrated care board must exercise its functions effectively, efficiently and economically.
  3. Duty as to improvement in quality of services. Section 14Z34 places integrated care boards under a duty to exercise their functions with a view to securing continuous improvement in the quality of services provided to individuals, as part of the health service. Under section 14Z34(3) integrated care boards should, in particular, look to continuously improve effectiveness of services, safety of services and patient experience.
  4. Duties as to reducing inequalities. Section 14Z35 sets out that integrated care boards must, in the exercise of their functions, have regard to the need to reduce inequalities between persons in relation to their ability to access health services and in the outcomes achieved from health services. Section 14Z35 (b) makes explicit that these outcomes for patients includes outcomes such as the quality of experience undergone by patients as described in section 14Z34(3).
  5. Duty to promote involvement of each patient. Section 14Z36 requires integrated care boards to, in the exercise of their functions, promote the involvement of patients and their carers and representatives in decisions about the provision of health services to patients. The reference to "carer" would include young carers and parent carers who provide care, unpaid, for a friend or family member who has needs, for example, arising from a disability, impairment or long-term health condition.
  6. Duty as to patient choice. Section 14Z37 imposes a duty on integrated care boards, in the exercise of their functions, to act with a view to enabling patient choice (for example, by commissioning so as to allow patients a choice of treatments, or a choice of providers, for a particular treatment).
  7. Duty to obtain appropriate advice. Section 14Z38 requires integrated care boards to obtain appropriate advice from people who, collectively, have a broad range of professional expertise in relation to the prevention, diagnosis or treatment of illness, and the protection or improvement of public health to enable them to discharge their functions effectively. This could involve, for example, an integrated care board employing healthcare professionals to advise the integrated care board on commissioning decisions for certain services, or appointing professionals to any committee that the integrated care board may set up to support commissioning decisions. It could also involve consulting clinical networks and senates.
  8. Duty to promote innovation. Section 14Z39 imposes a duty on integrated care boards, in the exercise of their functions, to promote innovation in the provision of health services including in making arrangements for the provision of health services.
  9. Duty in respect of research. Section 14Z40 puts a duty on integrated care boards in respect of research. Each integrated care board must, in the exercise of its functions, facilitate or otherwise promote health research and the use of evidence obtained from research. The aim of this section is to further embed research in the health and care system.
  10. In practice, each integrated care board could exercise its duty to facilitate or otherwise promote research and the use of evidence obtained from research by:
    • considering research when exercising its commissioning functions, both in terms of ensuring that the services commissioned have been informed by the evidence obtained from research and in selecting providers who are research-active;
    • encouraging its providers to be actively involved in the delivery of research and to provide services that are informed by evidence from research;
    • having a dedicated research office/team providing support for research;
    • articulating local research needs when assessing local needs, articulating plans for addressing these when preparing strategies and plans, and encouraging its partner organisations to play an active and collaborative role in pursuing these;
    • having Board-level discussions on research activity, the use of the evidence from research, the research workforce, and research culture within the integrated care system; and/or
    • where appropriate, exercising the duty to facilitate or otherwise promote research in conjunction with its power to conduct, commission or assist the conduct of research (paragraph 13(1) of Schedule 1 of the NHS Act 2006), for example by hosting or being a collaborating partner in research infrastructure.
  1. Duty to promote education and training. Section 14Z41 puts a duty on integrated care boards in respect of education and training. Each integrated care board must, in exercising its functions, have regard to the need to promote education and training for persons who are employed, or who are considering becoming employed, in an activity related to the provision of services as part of the health service in England, so as to assist the Secretary of State and Health Education England in the discharge of the duty under section 1F.
  2. Duty as to promoting integration. Section 14Z42 requires integrated care boards to exercise their functions with a view to ensuring that health services are integrated with the provision of social care and health-related services where this would improve the quality of the services, reduce inequalities of access or reduce inequalities in outcomes; under this integration can be integration of health services with other health services or health services with health-related services (such as housing services), or health services with social care services.
  3. Duty to have regard to effect of decisions. Section 14Z43, sets out a new duty, which also applies to the other "relevant bodies". The "relevant bodies" are NHS England, NHS Trusts in England and NHS Foundation Trusts.
  4. This duty has been described operationally as the "triple aim" duty.
  5. Subsection (1) provides that integrated care boards will be under a duty, in making a decision about the carrying out of their functions, to have regard to all likely effects of their decisions on three areas: the health and well-being of the people of England (paragraph (a)), the quality of services provided or arranged by relevant bodies (paragraph (b)) and the efficiency and sustainability of resources used by the relevant bodies (paragraph (c)).
  6. The reference in the subsection to "all" likely effects means that the integrated care board will have to consider, under paragraphs (b) and (c), the effects of the decision both on its own quality of services and resource use and those of other relevant bodies.
  7. Subsection (2) excludes decisions relating to services provided to a particular individual (e.g. individual clinical decisions or highly specialist commissioning decisions concerning an individual patient) from this duty. Under subsections (b) and (c), it also specifies that when complying with Triple Aim duty, integrated care boards must consider inequalities in health and well-being and the benefits obtained from services.
  8. Subsection (3) provides that integrated care boards must have regard to guidance on the discharge of this duty published by NHS England under new section 13NB.
  9. Duties as to climate change: Section 14Z44 introduces a new duty on Integrated Care Boards that requires each integrated care board to have regard to how it can best support the achievement of the government’s legislative targets regarding the environment and climate change. These are specified as: the target set under Section 1 of the Climate Change Act (the Net Zero emissions targets, currently set for 2050) and the targets due to be set under Section 5 of the Environment Act, which pertain to such matters as air quality, water quality and species abundance (among others). In addition, the duty requires each integrated care board to have further regard to how it may support efforts to adapt to the predicted impacts of climate change as set out in reports brought forward under section 56 of the Climate Change Act. The duty applies when an integrated care board exercises all of its functions. Subsection (2) of the duty requires integrated care boards to have regard to any guidance issued by NHS England under section 13ND on how it is to discharge this duty.
  10. Public involvement and consultation by integrated care boards. Section 14Z45 sets out requirements for involving the public (whether by consultation or otherwise). Integrated care boards must make arrangements to involve individuals to whom services are being or may be provided in the commissioning process. Under section 14Z45(2), arrangements must be made to secure the involvement of individuals and their carers and representatives in planning commissioning arrangements; in developing and considering proposals for changes in the commissioning arrangements, where those proposals would have an impact on how services are provided or the range of health services available; and in decisions that would likewise have such an impact. Under section 14Z45(3), this duty does not apply in cases where a trust special administrator drafts a report concerning an NHS Trust or Foundation Trust and NHS England and the Secretary of State have already made decisions about actions to take.
  11. Joint exercise of functions with Local Health Boards. Regulations may be made under section 14Z46(1) to allow any prescribed functions of an integrated care board to be exercised jointly with a Local Health Board. Local Health Boards are the bodies responsible for commissioning and providing health services in Wales. Regulations may also make provision for any such functions to be exercised by a joint committee of the integrated care board and the Local Health Board. Subsection (3) makes it clear that these arrangements do not affect any liabilities of integrated care boards arising from the exercise of its functions under arrangements with a Local Health Board. Such regulations would be subject to the negative procedure.
  12. Raising additional income. Section 14Z47 allows integrated care boards to raise additional income for improving the health service, provided that this does not significantly interfere with the integrated care board’s ability to perform its functions.
  13. Power to make grants. Section 14Z48 allows integrated care boards to make grants or loans, subject to such conditions as the integrated care board deems appropriate, to NHS trusts, NHS foundation trusts, or voluntary organisations that provide or arrange for the provision of services similar to the services in respect of which an integrated care board has functions.
  14. Duty to keep experience of members under review. Section 14Z49(a) requires an integrated care board to keep under review the skills, knowledge and experience that it considers, when taken together, necessary for the members of the board to have in order for the board to effectively carry out its functions. Section 14Z49(b) requires the board to take such steps as it considers necessary to address or mitigate the shortcoming that they identified. This could, for example, be through the membership or through taking expert advice.
  15. Responsibility for payments to providers. Section 14Z50 (1) provides that NHS England may publish a document specifying the circumstances in which an integrated care board is liable to make payments to a provider to pay for services provided under arrangements commissioned by another integrated care board. This would, for instance, enable NHS England to specify that, where a person uses an urgent care service commissioned by an integrated care board other than the integrated care board that is ordinarily responsible for that person’s healthcare, the cost of that service is charged to the latter integrated care board. It could, for instance, decide that integrated care boards should be left to agree mutual arrangements for sharing costs where patients from a number of different integrated care boards use the same urgent care service. Where NHS England publishes such a specification, an integrated care board will be required to make payments in accordance with that document (subsections (2) and (3)). In those circumstances, no other integrated care board will be liable for the payment. Any sums payable by virtue of subsection (2) may be recovered under subsection (5) as a civil debt. Where NHS England makes a specification, it may publish guidance for the purpose of assisting integrated care boards to understand and apply it (subsection (6).
  16. Guidance by NHS England. Section 14Z51 stipulates that NHS England must publish guidance for integrated care boards on the discharge of their functions. Integrated care boards must have regard to this guidance.
  17. Joint forward plans for integrated care board and its partners. Section 14Z5214Z52 makes provision with regard to commissioning plans. Subsection (1) stipulates that each integrated care board, and its partner NHS trusts and NHS foundation trusts, must prepare a plan before the start of each financial year to set out how they propose to exercise their functions over the next 5 years. In practice, it is expected that this plan will set out how an integrated care board will meet the health needs of its population and this will include primary, community and acute care. Under subsection (2((a) the joint forward plan for an integrated care board and its partners must describe the health services that the board proposes to commission over the period. Under subsection(2)(b), the plan must, in particular, explain how the integrated care board proposes to discharge each of its duties under sections 14Z34 to 14Z45 (general duties of integrated care boards) and sections 223GA to 223N (financial duties). These general duties sections cover: continuous improvement in the quality of services; reducing inequalities; promoting involvement of each patient; enabling patient choice; obtaining appropriate advice; promoting innovation; facilitating or otherwise promoting research and the use of evidence from research; promoting education and training; promoting integration, how it will fulfil its duty to have regard to the wider impact of decisions have regard to certain matters relating to the environment, including climate change; and ensure public involvement and consultation. Under subsection (2)(c), it must also reference how the plan implements any relevant joint local health and wellbeing strategies to which the integrated care board is required to have regard. Under subsection (2)(d), the forward plan must also set out any steps the integrated care board proposes to take to address the particular needs children and young persons under the age of 25 and under subsection (2)(e) the steps it proposes to take to address the particular needs of victims of abuse.
  18. Under subsections (3) and (4), this plan must be published and sent to NHS England, the relevant integrated care partnership and any relevant Health and Wellbeing Boards. NHS England may specify a date by when this must be done under subsection (5). An integrated care board and its partner NHS trusts and NHS foundation trusts must have regard to the plan (subsection (6)).
  19. Revision of forward plans. Under Section 14Z53, the forward plan may be revised. Should the proposed revision be deemed "significant", the integrated care board must publish the revised plan and give a copy to the integrated care partnership, NHS England and the relevant health and wellbeing board. Under subsection (3), where the integrated care board revises the plan and the changes are not significant, it must publish a document setting out the changes and give a copy of that document to the integrated care partnership, each relevant health and wellbeing board and NHS England.
  20. Consultation about forward plans. Under section 14Z54, when preparing a forward plan, or making a change it deems significant, the integrated care board must consult individuals for whom it has core responsibility for and any other persons they consider it appropriate to consult.
  21. Under subsections (3) and (4), the integrated care board must also provide relevant Health and Wellbeing Boards with a copy of the draft plan or revised plan (as the case may be) and consult on whether the plan adequately takes the latest joint health and wellbeing strategy into account.
  22. Under subsections (5) and (6), the Health and Wellbeing Board is required to respond with its opinion on the matter it is consulted upon and may also give its opinion to NHS England. Where a Health and Wellbeing board gives an opinion to NHS England, it must inform the integrated care board and its partner NHS trusts and foundations trusts. Under subsection (7), if the integrated care board went on to make further changes to the forward plan, this process would have to be repeated. The revised plan would have to be published and a copy given the relevant Health and Wellbeing Board and NHS England.
  23. Under subsection (8), all published forward plans must include:
    • a summary of the views of individuals consulted;
    • an explanation of how those views were taken into account; and
    • a statement as to whether the relevant Health and Wellbeing Board(s) agreed that the plans have due regard to the joint health and well-being strategy or strategies.
  1. Opinion of Health and Wellbeing Boards on forward plan. Section 14Z55 allows each Health and Wellbeing Board to provide NHS England with its opinion on whether an integrated care board’s forward plan has taken proper account of the relevant joint health and wellbeing strategy. If it does so, it must provide a copy of this opinion to the integrated care board in question.
  2. Joint capital resource use plan for integrated care board and partners. Section 14Z56 stipulates that before the start of each financial year, an integrated care board and its partner NHS trusts and NHS foundation trusts must prepare a plan setting out their planned capital resource use. Subsection (2) provides that the plan must relate to such a period as the Secretary of State may direct (and such a direction must be published (subsection (3)). The plan must be published (subsection (4). Under subsection (5), the integrated care board and its partner NHS Trusts and Foundations Trusts must give a copy of the plan to the integrated care partnership, each relevant Health and Wellbeing Board and NHS England. NHS England can publish guidance about the discharge of functions under this section under subsection (7) and the integrated care board and its partner NHS trusts and foundation trusts must have regard to such guidance (subsection (8)).
  3. Under subsection (9), NHS England may give directions, in relation to a financial year-
    • specifying descriptions of resources which must, or must not, be treated as capital resources for the purposes of this section;
    • specifying uses of capital resources which must, or must not, be taken into account for the purposes of this section.
  1. Under section 14Z57, a plan published under section 14Z56 can be revised. Any revisions the integrated care board and its partner NHS trusts and foundation trusts consider significant must be published and a copy provided to NHS England, the integrated care partnership and each relevant Health and Wellbeing Board. Under subsection (3), where the revised plan does not contain significant changes, the integrated care board and its partner NHS trusts and foundation trusts must publish a document setting out the changes and give a copy of that document to the integrated care partnership, each relevant health and wellbeing board and NHS England.
  2. Annual report Section 14Z58 stipulates that an integrated care board must, in each financial year, prepare a report on how it has discharged its functions in the previous financial year. Under subsection (2) an annual report must, in particular, explain how the integrated care board proposes to discharge each of its duties under sections 14Z34 to 14Z45 facilitating or otherwise the use of from research. The report must also review to what extent the integrated care board has exercised its functions in accordance with its forward plan and capital resource use plan, as well as to what extent it has implemented any relevant health and wellbeing strategies. Under subsection (3), in producing the report, the integrated care board must consult each relevant Health and Wellbeing Board. Under subsection (4) the annual report must include a statement of the expenditure incurred by the integrated care board during the financial year that relates to mental health and an explanation of the statement and calculation. NHS England may give directions to integrated care boards as to the form and content of the report (subsection (5)). The integrated care board must also publish the annual report and give copies to NHS England by a date specified by NHS England (subsection (6)).
  3. Performance assessment of integrated care boards. Section 14Z59 stipulates that NHS England must conduct a performance assessment of each integrated care board in respect of each financial year.
  4. Under subsection (3), the assessment must, in particular, include an assessment of how well the integrated care board has discharged its duties concerning the improvement in quality of services (section 14Z34), reducing inequalities (section 14Z35), obtaining appropriate advice (section 14Z38), having regard to effect of decisions (section 14Z43), public involvement and consultation (section 14Z45), financial duties (sections 223GB to 223N) and the duty to have regard to assessments and strategies (section 116B(1) of the Local Government and Public Involvement in Health Act 2007).
  5. Under subsection (4), in producing the report, NHS England must consult each relevant Health and Wellbeing Board as to its views on the any steps that the board has taken to implement any relevant joint local health and wellbeing strategy. NHS England must also have regard to any guidance published under section 14Z51 or any guidance published by the Secretary of State (subsection (5)). NHS England must publish a report in respect of each financial year containing a summary of the results of each performance assessment conducted by NHS England in that year (subsection (6)).
  6. Power of NHS England to obtain information: Under section 14Z60, NHS England may require an integrated care board to provide NHS England with any necessary documents or other information.
  7. Power to give directions to integrated care boards: Section 14Z61 applies if NHS England considers an integrated care board to be failing or to have failed to discharge any of its functions, or that there is a significant risk that an integrated care board will fail to do so. Subsection (2) provides that NHS England may direct an integrated care board to discharge those functions in a specified manner within a specified period.
  8. Under subsections (3), (4), (5) and (6), NHS England may:
    • direct the integrated care board or chief executive of the integrated care board to ceases to perform any of its functions.
    • terminate the appointment of the chief executive and direct the chair and other members of the board to appoint a replacement of their direction.
    • exercise any function on behalf of the board or direct another integrated care board to perform functions specified by NHS England.
    • exercise any functions of the chief executive or direct a chief executive of another integrated care board to perform functions specified by NHS England.
  1. Under section 14Z62, before giving directions under section 14Z61(5)(b) or (8)(b) NHS England must consult the integrated care board to which it is proposing to give the direction or to whose chief executive it is proposing to give the direction (subsection (1)). The integrated care board is required to cooperate with any chief executive who is directed to exercise its functions (subsection (2)).Permitted disclosures of information: Section 14Z63 stipulates that integrated care boards are permitted to disclose information obtained in the exercise of its functions in the circumstances listed in subsection (1).
  2. Interpretation: Section 14Z64 defines the terms used in the chapter.
  3. Subsection (3a) inserts subsection (1A) after subsection (1) of section 48 of the 2006 Act requiring partner NHS foundation trusts to share any information required by integrated care boards with them.
  4. Subsection (3b) substitutes subsection (2) of section 48 of the 2006 Act requiring partner NHS foundation trusts to provide information in such form, and at such time or within such period, as may be specified by the person imposing the requirement.
  5. Subsection (4a) converts the existing provision in paragraph 13 of Schedule 4 to sub-paragraph (1).
  6. Subsection (4b) inserts sub-paragraph (2) in paragraph 13 of Schedule 4 requiring partner NHS trusts to share any information with its partner integrated care board that it requires and inserts subsection (3) in paragraph 13 of Schedule 4 which requires information in subsection (2) to be submitted in such form, and at such time or within such period, as may be specified by the integrated care board.

Integrated Care Partnerships

Section 26: Integrated Care Partnerships and Strategies

  1. This section amends the Local Government and Public Involvement in Health Act 2007 to account for the transition from CCGs to integrated care boards and makes relevant amendments to provide for the integrated care partnership and its integrated care strategy.
  2. Subsection (3) requires local authorities to share Joint Strategic Needs Assessments with the integrated care partnerships that overlap with the area of the local authority.
  3. Subsection (4) inserts new sections into the Local Government and Public Involvement in Health Act 2007 relating to integrated care partnerships and their strategies.
  4. Section 116ZA(1) requires the integrated care board and each local authority in the area of the integrated care board to establish an "integrated care partnership", which is a joint committee of these bodies. Under subsection (2), the partnership must include one member appointed by the integrated care board and one member appointed by each relevant local authority and any members appointed by the integrated care partnership itself. Under subsection (3), the integrated care partnership may determine its own procedures (including quorum).
  5. Section 116ZB(1) requires the integrated care partnership to prepare an "integrated care strategy". The strategy must detail how the needs of an area will be met by the exercise of functions of either the integrated care board in the area, NHS England, or the relevant local authorities. Under subsection (2) the strategy must consider how NHS bodies and local authorities could work together to meet these needs using section 75 of the NHS Act 2006 to make arrangements. In preparing this strategy the integrated care partnership must have regard to the NHS mandate and guidance published by the Secretary of State (subsection (3)) and involve the Local Healthwatch and people who live or work in the integrated care partnership’s area (subsection (4)). The strategy may also state how health-related services could be more closely integrated (subsection (5)).
  6. Under subsection (6), the integrated care partnership must consider revising its integrated care plan whenever it receives a new joint strategic needs assessment. Under subsection (7), the integrated care strategy must be published and shared with each responsible local authority, and the relevant integrated care board in that area.
  7. Section 26(5) of the Act inserts into section 116A of the Local Government and Public Involvement in Health Act 2007 a requirement for local authorities and their partner integrated care boards, in response to an integrated care strategy, to prepare a "joint local health and wellbeing strategy" that sets out how the local authorities, integrated care board and NHS England will meet the assessed needs in that area. "Assessed needs", in relation to the area of a local authority, means the needs assessed in relation to its area under section 116.
  8. Section 26(6) of the Act substitutes section 116B and places a requirement for local authorities and integrated care boards to have regard to the joint strategic needs assessment, the integrated care strategy, and the joint local health and wellbeing strategy when exercising their functions (subsection (1)), and for NHS England to have regard to the above when exercising their functions related to the provision of health services in the area (subsection (2)).

Integrated Care System: Financial Controls

Section 27: NHS England’s financial responsibilities

  1. This section substitutes sections 223C to 223E of the NHS Act 2006.
  2. Financial duties of NHS England: expenditure. New Section 223C sets out that NHS England must exercise its functions with a view to ensuring that total health expenditure in respect of each financial year does not exceed the aggregate of any sums received in the year by NHS England and integrated care boards.
  3. Under subsection (2), the Secretary of State may, by direction, specify descriptions of sums that are, or are not, to be treated for the purposes of this section as having been received by a body, or as having been received by it in a particular financial year; specify descriptions of expenditure that are, or are not, to be treated as part of total health expenditure or part of total expenditure for a particular year.
  4. NHS England: banking facilities. New Section 223CA allows the Secretary of State to direct NHS England to use banking facilities specified by them.
  5. Financial duties of NHS England: controls on total resource use. New section 223D sets out that NHS England must exercise its functions with a view to ensuring that total capital resource use does not exceed the limit specified in a direction by the Secretary of State and that total revenue resource use does not exceed the limit specified in a direction by the Secretary of State. In this section total capital and revenue resource use are the resource use of NHS England, integrated care boards, English NHS trusts and NHS foundation trusts taken together. Subsection (2) excludes transfers of resource between those bodies from the definition of resource use.
  6. Under subsection (4), a direction specifying a limit in relation to a financial year may be varied by a subsequent direction only if-(a) NHS England agrees to the change, (b) a parliamentary general election takes place, or (c) the Secretary of State considers that there are exceptional circumstances which make the variation necessary.
  7. Under subsection (5), the Secretary of State must publish and lay before Parliament any directions under this section.
  8. Financial duties of NHS England: additional controls on resource use. Under new section 223E, the Secretary of State may direct NHS England to ensure- (a) that relevant capital resource use in a financial year which is attributable to matters specified in the direction does not exceed an amount so specified; (b) that relevant revenue resource use in a financial year which is attributable to matters specified in the direction does not exceed an amount so specified. In this section "relevant capital resource use" and "relevant revenue resource use" refer to that resource use by NHS England and integrated care boards. Under subsection (3), the Secretary of State may direct NHS England to ensure that NHS England’s use of revenue resources in a financial year which is attributable to such matters relating to administration as are specified in the direction does not exceed an amount so specified.

Section 28: Expansion of NHS England’s duties in respect of expenditure

  1. This section enables new section 223C of the NHS Act 2006 (as substituted by section 27 of this Act), to be expanded to add NHS trusts established under section 25 and NHS foundation trusts to the list of bodies contributing to the aggregate of any sums received in the year in respect to the financial duty on NHS England to ensuring that total health expenditure in respect of each financial year does not exceed the aggregate of any sums received in the year.

Section 29: Financial Responsibilities of integrated care boards and their partners

  1. Power to impose financial requirements on integrated care boards. This section omits sections 223H to 223J (financial duties of clinical commissioning groups) of the NHS Act 2006 and inserts a number of new sections. New section 223GB allows NHS England to impose financial requirements on integrated care boards in relation to their management or use of financial or other resources. Under subsection (2), these requirements may include limits on expenditure or resource use. These requirements can be imposed on any integrated care boards specified, who must comply with them. Under subsection (3), NHS England must publish any directions issued under this section.
  2. Financial duties of integrated care boards: expenditure limits. Under new section 223GC, integrated care boards must operate with a view to ensure that the expenditure does not exceed the aggregate of any sums received by an integrated care board within that financial year. NHS England may specify, by direction, descriptions of income and expenditure that should or should not be counted for the purposes of reaching financial balance, or the financial year in which they are counted.
  3. Integrated Care Boards: banking facilities. New section 223GD allows the Secretary of State to specify the banking facilities that integrated care boards are required to use for any specified purpose.
  4. Joint financial objectives for integrated care boards. Under new section 223L (substituting sections 223H to 223J), NHS England can set joint financial objectives for integrated care boards and their partner NHS trusts and NHS foundation trusts, who must operate with a view to achieving these objectives.
  5. Financial duties of integrated care boards: use of resources. Under new section 223M, integrated care boards and their partner NHS trusts and NHS foundation trusts must operate with a view to ensuring that the local capital resource use and local revenue resource use they use does not exceed the limits specified by direction from NHS England in that financial year. Under subsection (3), where an NHS trust or NHS foundation trust is partner to more than one integrated care board, NHS England can specify how resources should be apportioned to one or more different integrated care boards. Under subsection (4), NHS England can also specify what expenditure can or cannot be considered capital resources or revenue resources for the purpose of these provisions.
  6. Financial duties of integrated care boards: additional controls on resource use. New section 223N allows NHS England to give direction to an integrated care board and its partner NHS trusts and foundation trusts, to exercise their functions with a view to ensuring that they do not spend more than a specified maximum amount of local capital resource or local revenue resource. Under subsection (2), NHS England can also specify what resources are or are not to be considered as capital resources or revenue resources for the purpose of these provisions.
  7. Resources etc. relevant to sections 223D, 223E, or 223M. New section 223O allows the Secretary of State to specify which resources must, or must not, be treated or taken into account as capital resources or revenue resources for the purposes of sections 223D, 223E, or 223M.

Section 30: Expansion of financial duties of integrated care boards and their partners

  1. Financial duties of integrated care boards etc: expenditure limits. This section, which it is intended may be commenced later once the sector is prepared to move to more system financial accountability, will omit section 223GC and insert new section 223LA to expend the scope of the expenditure financial duties. New section 223LA states that an integrated care board and its partner NHS trusts, and NHS foundation trusts must exercise their functions with a view to ensuring that local health expenditure does not exceed the aggregate of any sums received by them in the year.

Integrated Care System: reviews and further amendments

Section 31: Care Quality Commission reviews etc of Integrated Care System

  1. This section amends Chapter 3 of Part 1 of the Health and Social Care Act 2008 ("the 2008 Act") to place a duty on the Care Quality Commission (CQC) to review integrated care systems.
  2. Subsection (2) inserts a new section 46B, into the 2008 Act.
    1. Subsection (1) of new section 46B requires the CQC to (a) conduct reviews of the provision of "relevant health care" (defined as NHS care and public health) and adult social care within the area of each integrated care board; (b) assess the functioning of the system in relation to the provision of this care, and in particular, how the various bodies work together, including for example the role of the integrated care partnership; and (c) publish a report of this assessment.
    2. Subsection (2) requires the Secretary of State to (a) set, and from time to time revise, objectives and priorities for the CQC in relation to assessments under the section and (b) inform the CQC of these. Subsection (3) requires that priorities set by the Secretary of State under subsection (2)(a) must include priorities relating to leadership, the integration of services and the quality and safety of services. Subsection (4) requires the CQC to (a) determine, and from time to time revise, indicators of quality for these assessments and (b) obtain the approval of the Secretary of State for these indicators. Subsection (5) allows the Secretary of State to direct the CQC to revise these indicators. Subsection (6) allows for different objectives, priorities and indicators for different cases.
    3. Subsection (7)(a) requires the CQC to prepare, and from time to time revise, a statement on (i) the frequency of reviews and period to which the reviews relate, and (ii) the method of assessment and evaluation for these reviews. Subsection (7)(b) requires the CQC to obtain the approval of the Secretary of State for this statement. Subsection (8) allows the statement to make different provision regarding the frequency, period and method for different cases. Subsection (9) requires the CQC to consult NHS England and any other persons it considers appropriate before preparing or revising the statement. Subsection (10) allows the Secretary of State to direct the CQC to revise the statement.
    4. Subsection (11) requires the CQC to publish (a) the objectives and priorities, (b) the indicators of quality, and (c) the statement on frequency and method.
    5. Subsection (12) defines terms used in section 46B, with subsection (13) allowing for the definition of "relevant health care" to be amended by way of Regulations. Such regulations would be subject to the draft affirmative procedure.
  3. Section 31(3) of the Act amends section 48 of the 2008 Act (special reviews) so that a review under section 46B is not a special review under section 48 of the 2008 Act.
  4. Section 31(4) of the Act amends section 50 of the 2008 Act to add reviews under section 46B requiring CQC to take certain steps if it considers a local authority is failing to discharge any of its adult social care functions to an acceptable standard.

Section 32: Integrated Care System: further amendments

  1. This section inserts Schedule 4 which makes minor and consequential amendments relating to integrated care boards.

Schedule 4: Integrated Care System: minor and consequential amendments

  1. This Schedule makes minor and consequential amendments to do with integrated care systems.

Merger of NHS bodies etc.

Section 33: Abolition of Monitor and transfer of functions to NHS England

  1. This section abolishes Monitor under subsection (1). Subsection (2) explains that Schedule 5 contains consequential amendments that arise out of the transfer of Monitor’s functions to NHS England, and related amendments. This section and related schedule fulfils the intention to merge Monitor into NHS England to form a single body by transferring the appropriate functions of Monitor.

Schedule 5: Abolition of Monitor and transfer of its functions

  1. This Schedule contains consequential amendments relating to the abolition of Monitor and the transfer of its regulatory functions to NHS England.

Section 34: Exercise by NHS England of new regulatory functions

  1. This section inserts a new section 13SB (Minimising conflicts between regulatory and other functions), in the NHS Act 2006. Section 13SB places a duty on NHS England to minimise the risk of conflict or manage any conflicts that arise between their regulatory functions, as set out in subsection (2) and (3), and its other functions. NHS England will be required to include in its annual report under section 13U of the NHS Act 2006, a statement explaining how it has complied with its section 13SB duty.

Section 35: Modification of standard license conditions

  1. This section amends section 100 of the 2012 Act. Section 100 allows NHS England to modify standard licence conditions in all providers’ licences or in licences of a particular description.
  2. Section 100(1A) requires that, before making what NHS England considers is a major change to the license conditions, they must carry out an assessment of the likely impact of the modification, or publish a statement setting out why such an assessment is not needed.
  3. Subsection (3) makes consequential amendments to section 100.
  4. Subsection (4) requires NHS England to include any assessment carried out under subsection (1A) in the notice given to providers and others.

Section 36: Abolition of NHS Trust Development Authority

  1. This section fulfils the intention to merge the TDA into NHS England to form a single body by transferring the appropriate functions of the TDA. Subsection (1) abolishes the TDA and subsection (2)(a) revokes the order establishing the TDA: The National Health Service Trust Development Authority (Establishment and Constitution) Order 2012 (SI 2012/901).
  2. Subsections (2)(b) and (2)(c) revoke the National Health Service Trust Development Authority Regulations 2012 (S.I. 2012/922); the National Health Service Trust Development Authority (Directions and Miscellaneous Amendments etc.) Regulations 2016 (S.I. 2016/214) and subsections (3) and (4) makes consequential amendments that arise as a result of the abolition of the TDA.

Section 37: Merger of bodies: consequential amendment

  1. This section makes consequential amendments to NHS England’s general duties in the 2012 Act to reflect its new oversight role of NHS Trusts and Foundation Trusts.

Section 38: Transfer schemes in connection with abolished bodies

  1. This section gives the Secretary of State the power, under subsection (1) to make schemes to transfer the property, rights and liabilities (including criminal liabilities) from Monitor or the TDA to NHS England as a consequence of the abolishment of those bodies. Subsection (2) sets out the detail of what may be transferred as part of a transfer scheme and subsection (3) outlines the detail of transfer schemes.

Section 39: Transfer schemes under section 38: taxation

  1. This section provides that the Treasury may vary the way in which a relevant tax has effect in relation to anything transferred under a scheme under section 38, or anything done for the purposes of, or in relation to, a transfer under such a scheme.
  2. The intention is that any transfer of assets, rights, or liabilities be tax neutral for the transferee and the transferor. Section 38 provides a power for the Treasury to vary any relevant tax in order to ensure that no taxes arise, and no changes to the tax position of either the transferee or transferor body arise.

Secretary of State’s functions

Section 40: Duties in respect of research

  1. This section amends the NHS Act 2006 to clarify that the Secretary of State’s duty to promote research, in exercising functions in relation to the health service, includes doing so by facilitating research. The section inserts the words "facilitate or otherwise" into the duty. Section 7 of the Act similarly amends the wording of the research duty of NHS England. Section 25 creates a corresponding research duty on integrated care boards.

Section 41: Report on assessing and meeting workforce needs

  1. This section inserts a new Section 1GA into the NHS Act 2006.
  2. Subsection (1) sets out a duty on the Secretary of State to publish, at least once every five years, a report describing the system for assessing and meeting the workforce needs of the health service in England.
  3. Subsection (2) places a duty on HEE and NHS England to assist the Secretary of State in preparing the report, if asked by the Secretary of State to do so.

Section 42: Arrangements for exercise of public health functions

  1. This section replaces section 7A in the NHS Act 2006 and concerns the exercise of Secretary of State’s public health functions. Subsections (1) and (2) allow for any of Secretary of State’s public health functions to be exercised by NHS England, an integrated care board, a local authority that has duties to improve public health, a combined authority, or any other body that is specified in regulations. Under subsection (3), powers under this section may be exercised on such terms as may be agreed and agreements can be made as to the terms of payment as well as terms prohibiting or restricting the further onward delegation of the function in question or its joint exercise by a joint committee. Under subsection (5), any party that has been delegated a relevant public health function as part of these arrangements is liable for the exercise of that function. Similarly, only the body which exercises the function in question will be able to enforce any rights acquired in their exercise. The intention is to provide flexibility and efficiency in the way that public health services are delivered.

Section 43: Power of direction: public health functions

  1. This section introduces a new section 7B into the NHS Act 2006 and allows the Secretary of State to direct one or more relevant bodies to exercise any of the public health functions of the Secretary of State. "Public health functions" are functions under section 2A (duty to take steps to protect public health), section 2B (power to take steps to improve public health) of NHS Act 2006 or certain functions under Schedule 1 to NHS Act 2006. Subsection (2) defines relevant bodies as NHS England and integrated care boards.
  2. Subsection (3) of new section 7B provides that a direction may prohibit or restrict a relevant body from making delegation arrangements. This ensures that any functions that should not be capable of being delegated can be prescribed and any functions that may be delegated but that need to be more closely controlled can be subject to conditions.
  3. Subsection (5) provides that the Secretary of State may provide funding to NHS England or an integrated care board in relation to the functions to be exercised.
  4. Subsection (6) enables the Secretary of State to give directions to an integrated care board as to the exercise of any functions which it is directed to exercise by virtue of new section 7B. In relation to NHS England, subsection (7) refers to section 13ZC for equivalent power to give directions to NHS England as to the exercise of such functions. This might be used, for example, to ensure compliance with nationally consistent standards for vaccination or screening services.
  5. Subsection (8) provides that the Secretary of State must publish a direction given under subsection (1) or (6) as soon as reasonably practicable after giving the direction.
  6. Subsection (9) of new section 7B provides that when NHS England and/or an integrated care board exercises the Secretary of State’s public health functions under such a direction, any rights acquired or liabilities incurred will be enforceable against that body (and no other individual or body). Similarly, only the body which exercises the function in question will be able to enforce any rights acquired in their exercise.
  7. New section 7B adds to existing powers whereby the Secretary of State can arrange for a range of other bodies to exercise public health functions (via section 7A of the NHS Act 2006).

Section 44: Power of Direction: investigation functions

  1. This section introduces a new sections 7C, 7D and 7E in the NHS Act 2006.
  2. Subsection (2) inserts a new section 7C (Power of direction: investigation functions) into the NHS Act 2006 which provides that the Secretary of State may direct NHS England, or any other public authority, to exercise any of the investigation functions which are specified in the direction.
  3. Subsections 7C(2) and 7C(3) provide that the direction may prohibit or restrict the body directed from making delegation arrangements in relation to a function covered by the direction. Subsection 7C(4) provides that the Secretary of State may make payments to NHS England or any other public body in respect of the exercise of those investigation functions. Subsection 7C(5) provides that the Secretary of State may give directions to any person on whom those functions are conferred as to how those functions should be exercised. Section 13ZC of the NHS Act 2006 gives the Secretary of State a power to give directions to NHS England as to the exercise of its functions, as noted by subsection 7C(6).
  4. Any directions made under subsections 7C(1) or (5) must be published by the Secretary of State as soon as is reasonably practicable. Should any rights be acquired, or liabilities incurred by NHS England or and other public body by virtue of section 7C, they are enforceable by or against it and no other person.
  5. Subsection 7C(9) clarifies that the investigation functions are the functions which were previously exercised by the Trust Development Authority in respect of:
  • the National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) Directions 2016 made under sections 7 and 8 of the NHS Act 2006, (the HSIB directions 2016), or
  • the National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) (Additional Investigatory Functions in respect of Maternity Cases) Directions 2018 made under sections 7 and 8 of the NHS Act 2006 (the HSIB maternity investigations 2018).
  1. Subsection (2) also inserts a new section 7D (transfer schemes in connection with a direction under section 7C) into the NHS Act 2006. Subsections (7D)(1) and (2) provide that the Secretary of State may make one or more transfer schemes in connection with the transfer to NHS England and any other public body of any property, rights of liabilities relating to the discharge of functions pursuant to directions made under section 7C.
  2. Subsection (3) clarifies what may be transferred under the transfer scheme which includes property, rights and liabilities (including criminal liabilities).
  3. 7D subsections (4) and (5) provide further details on what the transfer scheme may do or provide. This includes that, a transfer scheme may make provisions which are the same or similar to those provided for by the Transfer of Undertakings (Protection of Employment) Regulations 2006. Therefore, a staff transfer scheme may be created to move staff from NHS England to the HSSIB, and could offer certain protections of employment rights for transferred staff.
  4. Subsection 2 of Section 44 of the Act also inserts a new section 7E (Transfer schemes under section 7D: taxation) into the NHS Act 2006. Subsection 7E(1) provides that the Treasury may through regulations vary the way in which a relevant tax has effect in relation to anything transferred under a scheme under section 7D, or anything done for the purposes of, or in relation to, a transfer under such a scheme.
  5. The intention is that any transfer of assets, rights, or liabilities be tax neutral for the transferee and the transferor. This section includes a power for the Treasury to vary any relevant tax so if necessary it can be used to ensure that no taxes arise, and no changes to the tax position of either the transferee or transferor body arise.

Section 45: General power to direct NHS England

  1. This section amends the NHS Act 2006 and inserts four new sections which provide the Secretary of State for Health and Social Care with powers to give directions to NHS England:
    • Section 13ZC Secretary of State directions as to the exercise of NHS England functions;
    • Section 13ZD Power to give directions: exceptions
    • Section 13ZE Compliance with directions: significant failure
    • Section 13ZF Secretary of State directions to provide information.
  1. New section 13ZC gives the Secretary of State the power to direct NHS England as to the exercise of any of their functions. Any direction given to NHS England under this section by the Secretary of State must be made in writing, must include a statement that it is in the public interest and must be published as soon as reasonably practicable after it is given.
  2. A direction under section 13ZC may include directing NHS England in relation to whether a power is to be exercised or not; when or how a function is, or is not, to be exercised; conditions that must be met before a function is exercised (for example, conditions relating to the provision of information, consultation or approval); and matters to be taken into account in exercising a function. The Secretary of State cannot use this power to direct NHS England not to perform a duty.
  3. The power of direction supplements other mechanisms for the Secretary of State to impose obligations on NHS England, such as the Mandate, which remains the primary mechanism through which the Secretary of State will set out the priorities that NHS England should be seeking to achieve.
  4. As clarified in subsections 13ZC(7) and (8) the power to direct in new section 13ZC(1) is not generally limited by the Secretary of State’s other statutory functions but is limited by other powers to make regulations and orders. The directions therefore cannot be used to impose requirements which should be set out in regulations, and circumvent any Parliamentary scrutiny or control provided for in the regulation-making power.
  5. Section 13ZD sets out the exceptions to the power in section 13ZC(1). The Secretary of State cannot use the power in 13ZC(1) to give directions to NHS England in relation to the appointment or employment of individuals by NHS England; in relation to individual clinical decisions; or in relation to drugs or treatments that the National Institute for Health and Care Excellence (NICE) has not recommended or issued guidance on as to its clinical and cost effectiveness.
  6. The section also repeals section 13Z2 (failure to discharge functions) of the NHS Act 2006 and introduces new section 13ZE. This section continues (as in previous section 13Z2 of NHS Act 2006) to confer a power on the Secretary of State to intervene in cases of significant failure of NHS England to carry out any of its functions. The new section 13ZE(1) allows for a specific type of direction to be given under section 13ZC which states that the Secretary of State considers NHS England to be failing or have failed to discharge any of its functions , and that the direction is aimed at addressing that failure. If NHS England fails to comply with this type of direction, the Secretary of State may intervene to discharge the relevant functions or arrange for their discharge by another person. Where the Secretary of State chooses to intervene in this way, they must publish their reasons for doing so. Sub-section (4) of the new section 13ZE clarifies that, for the purposes of the section, a failure to discharge a functions includes a failure to discharge it properly, and a failure to discharge it properly includes a failure to discharge it consistently with what the Secretary of State considers to be in the best interests of the health service.
  7. The section also introduces section 13ZF which gives the Secretary of State powers to direct NHS England to provide information and repeals paragraph 14 of Schedule A1 to the NHS Act 2006 (powers to require information). It gives the Secretary of State the power to direct NHS England to provide the Secretary of State with such information as they require, in such form and at such time or within such period. A direction under this section may also require NHS England to use any powers they hold to obtain this information from others (such as integrated care boards) if required.

Section 46: Reconfiguration of services: intervention powers

  1. This section amends the NHS Act 2006, to insert new section 68A. Section 68A provides for a new Schedule 10A that confers intervention powers on the Secretary of State in relation to the reconfiguration of NHS services.

Schedule 6: Intervention powers over the reconfiguration of NHS services

  1. Schedule 6 inserts a new Schedule 10A into the NHS Act 2006. The Schedule sets out a new intervention power in relation to the reconfiguration of NHS services.
  2. Paragraph 1 of Schedule 10A provides definitions of NHS commissioning body, NHS services, NHS trusts and the reconfiguration of NHS services for the purposes of the Schedule.
  3. Paragraph 2 places a duty on an NHS commissioning body to notify the Secretary of State when there is a "notifiable" proposal to reconfigure services. "Notifiable" is to be specified in regulations.
  4. Paragraph 3 sub-paragraph (1) gives the Secretary of State the power to give a direction to call in any proposal relating to a service reconfiguration. The direction is given to the NHS commissioning body.
  5. Paragraph 34 sub-paragraph (2) allows the Secretary of State to take on the decision-making role of the NHS commissioning body within 6 months of having made a direction calling in the proposal. The Secretary of State must notify the NHS commissioning body once they have finished considering the proposal.
  6. Paragraph 3 sub-paragraph 3 gives some examples of the decisions Secretary of State may choose to take when giving a direction for the reconfiguration of NHS services, but is not intended to be exhaustive. This includes power to decide whether a proposal should, or should not, proceed, or should proceed in a modified form; power to decide particular results to be achieved by the NHS commissioning bodies in taking decisions in relation to the proposal; power to decide the procedural or other steps that should, or should not, be taken in relation to the proposal; power to retake any decision previously taken by the NHS commissioning body.
  7. Paragraph 3 sub-paragraph (4) requires the Secretary of State to give relevant bodies the opportunity to make representations in relation to the proposal before taking a decision on the proposal. This must include the NHS commissioning body; if the NHS commissioning body is an integrated care board, NHS England; each local authority to whose area the proposed reconfiguration relates; and any other person the Secretary of State considers appropriate.
  8. Paragraph 3 sub-paragraph (5) provides that where the Secretary of State has made a decision under sub-paragraph (2)(a), that decision must be published together with an explanation of the reasons for taking it, and the NHS commissioning body must be notified of the decision and the reasons.
  9. Paragraph 3 sub-paragraph (6) requires the Secretary of State to publish a summary of representations made under sub-paragraph (4)
  10. Paragraph 4 subparagraphs (1)-(3) apply where the Secretary of State has called in a proposal under paragraph 34(1). While the Secretary of State is considering the proposal the NHS commissioning body must pause all work on the proposal, unless explicitly permitted in the direction. Once the Secretary of State has made a decision the NHS commissioning body must then give effect to that decision.
  11. Paragraph 5 subparagraph (1) gives Secretary of State the power to direct an NHS commissioning body to consider a reconfiguration of NHS services. This allows the Secretary of State to act as a catalyst where the Secretary of State thinks a reconfiguration may be necessary.
  12. Paragraph 5 sub-paragraph (2) requires the Secretary of State to publish any such direction made under paragraph 5(1), together with an explanation of the reasons for giving it.
  13. Paragraph 6 provides a power for the Secretary of State’s to require information or assistance from an NHS commissioning body, NHS trust or NHS foundation trust for the purposes of carrying out any functions under Schedule 10A.
  14. Paragraph 7 sub-paragraph (1) places a duty on the Secretary of State to publish guidance for NHS commissioning bodies, NHS trusts and NHS foundation trusts about the exercise of their functions under this Schedule. The guidance could be used to outline the process of notification, call in process, and communication of decisions. The guidance must outline how the Secretary of State will exercise the functions under this Schedule.
  15. Paragraph 7 sub-paragraph (2) place a requirement on NHS commissioning bodies, NHS Trusts and NHS Foundation Trusts to have regard to the guidance.

Section 47: Review into NHS supply chains

  1. Subsection 1 requires the Secretary of State to carry out a review into the risk of slavery and human trafficking taking place in relation to people involved in NHS supply chains.
  2. Subsection 2 allows the Secretary of State to determine which NHS supply chains to consider as part of the review or otherwise limit the scope of the review.
  3. Subsection 3 specifies that the review must however include a significant proportion of the NHS supply chains for cotton based products in relation to which companies formed under section 223 of the NHS Act 2006 (taken as a whole) exercise functions.
  4. Subsection 4 requires the Secretary of State to publish and lay before Parliament a report on the outcome of the review within 18 months of the section coming into force.
  5. Subsection 5 specifies that this report must describe the scope of and methodology used in carrying out the review.
  6. Subsection 6 requires that the report must include any views of the Secretary of State as to steps that should be taken to mitigate the risk of slavery and human trafficking taking place in relation to people involved in NHS supply chains.
  7. Subsection 7 requires NHS England to assist in the carrying out of the review or the preparation of the report, if requested to do so by the Secretary of State.
  8. Subsection 8 defines the health service in England, the NHS supply chain, and slavery and human trafficking for the purposes of this section.

NHS Trusts

Section 48: NHS trusts in England

  1. This section repeals section 179 of the 2012 Act. Section 179 of the 2012 Act was never commenced. If commenced, it would have abolished NHS Trusts in England. However not all NHS Trusts have converted to NHS Foundation Trusts. NHS Trusts still exist and will continue to exist and so this section of the 2012 Act has been repealed to avoid any confusion regarding the future existence of NHS trusts.

Section 49: Removal of power to appoint trust funds and trustees

  1. This section repeals paragraph 10 of Schedule 4 to the NHS Act 2006. This paragraph allowed the Secretary of State to appoint trustees for an NHS Trust to hold property on Trust. This section therefore removes the Secretary of States powers to appoint such Trustees.

Section 50: Sections 48 and 49: consequential amendments

  1. This section inserts Schedule 7. Schedule 7 makes consequential amendments relating to NHS Trusts in England, and the removal of the Secretary of States powers to appoint Trustees.

Schedule 7: NHS trusts in England and removal of power to appoint trustees; consequential amendments

  1. This Schedule makes minor and consequential amendments in relation to NHS trusts and the removal of power to appoint trustees.

Section 51: Licensing of NHS Trusts

  1. This section removes the exemption on NHS trusts to hold a license from NHS England (previously Monitor).
  2. Subsection (2) inserts a new section 87A into the 2012 Act, which requires NHS England to treat any new NHS Trusts as if they had applied for a license under section 85 of the 2012 Act and had met the criteria for being granted a license set out under section 86.
  3. Subsection (2) also requires NHS England to treat existing NHS Trusts as if they had been established on the day of commencement of section 51(1) of the Act for the purposes of licenses under section 85 and the application of section 87A(1).

Section 52: NHS Trusts: wider effect of decisions

  1. This provision, which is inserted into the NHS Act 2006 as the new section 26A, sets out a new duty on English NHS Trusts, which also applies to the other "relevant bodies". The "relevant bodies" are integrated care boards (new section 14Z43), NHS England (new section 13NA) and NHS Foundation Trusts (new section 63A).
  2. This duty has been described operationally as the "triple aim" duty.
  3. The duty applies to NHS Trusts established under section 25 of the NHS Act 2006, the effect of which is that it only applies to NHS Trusts in England, and not Wales.
  4. Subsection (1) provides that Trusts will be under a duty, in making a decision about the carrying out of their functions, to have regard to all likely effects of their decisions on three areas: the health and well-being of the people of England (paragraph (a)), the quality of services provided or arranged by relevant bodies (paragraph (b)) and the efficiency and sustainability of resources used by the relevant bodies (paragraph (c)).
  5. The reference in the subsection to "all" likely effects means that Trusts will have to consider, under paragraphs (b) and (c), the effects of the decision both on its own quality of services and resource use and those of other relevant bodies.
  6. Subsection (2) excludes decisions relating to services provided to a particular individual (e.g. individual clinical decisions or highly specialist commissioning decisions concerning an individual patient) from this duty. Under subsections (b) and (c), it also specifies that when complying with the Triple Aim duty, the relevant bodies must consider inequalities in health and well-being and the benefits obtained from services when considering the effects of their decisions on the areas in subsections (1)(a) and (b).
  7. Subsection (3) provides that Trusts must have regard to guidance on the discharge of this duty published by NHS England (under section 13NB).

Section 53: NHS Trusts: duties in relation to climate change

  1. Duties as to climate change: The Act introduces a new duty on NHS Trusts that requires each Trust to have regard to how it contribute to the achievement of the government’s legislative targets regarding the environment and climate change. These are specified as: the target set under section 1 of the Climate Change Act 2008 (the Net Zero emissions targets, currently set for 2050) and the targets due to be set under section 5 of the Environment Act 2021, which will pertain to such matters as air quality, water quality and species abundance (among others). In addition, the duty requires each Trust to have further regard to how it may support efforts to adapt to the predicted impacts of climate change as set out in reports brought forward under section 56 of the Climate Change Act 2008. The duty applies when a Trust is exercising any of its functions. Subsection (2) requires Trusts to have regard to any guidance issued by NHS England on how it is to discharge this duty.

Section 54: Oversight and support of NHS trusts

  1. Subsection (2) inserts new section 27A into the NHS Act 2006, which gives NHS England the power to monitor NHS trusts established under section 25 of the NHS Act 2006 and to provide them with advice, guidance or other support. This carries across the function that the TDA was previously directed to carry out under the National Health Service Trust Development Authority Directions and Revocations and the Revocation of the Imperial College Healthcare National Health Service Trust Directions 2016 (the 2016 Directions).

Section 55: Directions to NHS trusts

  1. This section inserts a new section 27B into the NHS Act 2006 which gives NHS England the power to give directions to NHS Trusts established under section 25 of the NHS Act 2006 on the exercise of their functions. The TDA previously had this power under direction from the Secretary of State as set out in the 2016 Directions.
  2. Under subsection (2), this section gives NHS England the equivalent power to direct NHS Trusts as is held by Secretary of State under section 8 of the NHS Act 2006. If an NHS England direction under this subsection conflicts with a Secretary of State direction under section 8 or paragraph 25(3) of Schedule 4 of the NHS Act 2006, NHS England’s direction under this section would have no effect.
  3. The manner in which NHS England shall provide directions to NHS Trusts are included in the amended section 273(3) of the NHS Act 2006.
  4. Subsection (3) of the section amends section 73 of the NHS Act 2006 (directions and regulations under Part 2), at subsection (2), to reflect the insertion of new section 27B.
  5. Subsection (4)(a) amends paragraph 20(2) of Schedule 4 to the NHS Act 2006, which limits the circumstances in which NHS trusts can generate additional income. The amendment expands the list of limitations to allow NHS England to specify in directions given under the new power in section 27B circumstances in which NHS trusts much seek NHS England’s consent to exercise certain functions in order to generate additional income.
  6. Subsection (4)(b) amends paragraph 25 of Schedule 4 to the NHS Act 2006, to ensure that any directions given by NHS England under the new section 27B of that Act are added to the things NHS trusts must have regard to in respect of staff employment including staff pay, allowances, terms and conditions.

Section 56: Recommendations about restructuring of NHS trusts

  1. This section inserts a new section 27C in the NHS Act 2006 which gives NHS England the power to make recommendations to NHS Trusts and to take steps it considers appropriate, in relation to applications made by NHS trusts relating to mergers under section 56 of the NHS Act 2006; acquisitions under section 56A of the NHS Act 2006; transfer of property etc. between NHS bodies under section 69A of the NHS Act 2006 and the dissolution of an NHS trust under paragraph 28 of Schedule 4 to the NHS Act 2006. The TDA was previously directed to exercise these functions under the 2016 Directions.

Section 57: Intervention in NHS Trusts

  1. This section inserts a new section 27D in the NHS Act 2006 which places a duty on NHS England to make recommendations to the Secretary of State if it consider that the Secretary of State ought to make an intervention order in relation to an English NHS trust under section 66(2) of the NHS Act 2006 or a default order in relation to an NHS trust under section 68(2) of the NHS Act 2006. NHS England will also be required, under section 27D(1)(b) and (c) to explain its reasons for any recommendations and make any recommendations that are considered appropriate in relation to the contents of the order that the Secretary of State will make.
  2. Previously the TDA was directed by the Secretary of State under the 2016 Directions, to make such recommendations.

Section 58: NHS Trusts: conversion to NHS foundation trusts and dissolution

  1. Subsection (2) amends section 33 of the NHS Act 2006 so that an application by an NHS Trust to become a Foundation Trust, no longer requires the support of the Secretary of State. Subsection (3) amends section 35 of the NHS Act 2006 so that authorisation may only be given for Foundation Trust status if the Secretary of State approves the authorisation and NHS England, having taken on the role of regulator, is satisfied of matters contained in section 35(2), which were matters that Monitor previously needed to be satisfied with before authorising an NHS trust to become a Foundation Trust.
  2. Subsection (5) also amends paragraphs 28, 29 and 30 of Schedule 4 to the NHS Act 2006. The amendment in paragraph 28 gives NHS England the power to dissolve an NHS trust on the approval of the Secretary of State and allows NHS England or the Secretary of State to make the order for dissolution if either consider it appropriate to do so. Neither the Secretary of State nor NHS England may make a dissolution order until after the completion of a consultation as may be prescribed, save for where it appears to either of them that the order needs to be made as a matter of urgency or where the order is made following the publication of a final report from a trust special administrator under section 65I(3) of the NHS Act 2006.

Section 59: Appointment of chair of NHS trusts

  1. This section amends paragraph 3(1)(a) of Schedule 4 (Appointment of chair of directors of NHS Trust) to the NHS Act 2006 provides for NHS England to appoint the chair of the board of directors for an NHS trust. This replaces the Secretary of State appointing the chair.
  2. The TDA was previously directed by the Secretary of State to appoint the chair of NHS trusts under the 2016 Directions.

Section 60: Financial Objectives for NHS trusts

  1. This section substitutes new paragraphs into Schedule 5 to the NHS Act 2006.
  2. Sub-paragraph (2) allows NHS England to set financial objectives for Trusts.
  3. Sub-paragraph (3) requires NHS Trusts to meet any financial objectives set by NHS England.
  4. Sub-paragraph (4) allows NHS England to set objectives for all NHS Trusts, for specific types of NHS Trust (e.g. those providing mental health or community services) or for individual NHS Trusts.

NHS Foundation Trusts

Section 61: Licensing of NHS Foundation Trusts

  1. This section amends section 88 of the 2012 Act. Section 88 requires that NHS England must treat an NHS foundation trust in existence at commencement of this section, or an NHS trust which becomes a foundation trust at a later date, as having made an application and met the criteria for a licence. As a result of this, the foundation trusts will not have to make a licence application.
  2. The new subsection (1) requires NHS England to apply this provision both when a new Foundation Trust is established under section 36 of the NHS Act 2006, but also when a Foundation Trust is created as a result of a merger under section 56 or a separation under section 56B of the 2012 Act.

Section 62: Capital Spending Limits for NHS Foundation Trusts

  1. This section amends the NHS Act 2006, to give NHS England the power to set a capital expenditure limit on an NHS Foundation Trust.
  2. Subsection (2) inserts sections 42B and 42C into the NHS Act 2006.
  3. Section 42B sets out how the limit to capital expenditure will be placed on a Foundation Trust, the process and defines "capital expenditure".
    1. Subsections (1) and (2) gives NHS England the power to make an order to set a capital expenditure limit on an individually named NHS Foundation Trust for a single financial year. The order must state the financial year and the trust which it applies to, as well as the expenditure limit.
    2. Subsections (3) and (4) places a duty on NHS England to consult with the Foundation Trust before the order is made and requires NHS England to publish the order so that it is in the public domain.
    3. Subsection (5) allows NHS England to set a limit either during, or before the financial year to which the limit relates.
    4. Subsection (6) imposes a statutory duty on the NHS Foundation Trust not to exceed the capital expenditure limit as specified in the order.
    5. Subsection (7) defines capital expenditure in line with how capital is reported in the Foundation Trusts annual accounts. Capital expenditure being that expenditure which falls to be capitalised in its annual accounts. This will cover assets with a life of greater than 1 year such as acquiring, or upgrading property, technology, or equipment.
  4. Section 42C(1) requires NHS England to produce guidance on the use of its power to make orders under section 42B, and subsection (2) requires NHS England to consult with the Secretary of State before publication of such guidance (or revised guidance). The guidance will set out information about the circumstances in which NHS England is likely to make an order to set a capital expenditure limit for a Foundation Trust and how it will establish the limit.
  5. Section 42C(3) requires NHS England to have regard to their own guidance when deciding whether to issue any orders to limit capital expenditure by Foundation Trusts.
  6. Section 42C(4) provides that order made by NHS England under section 42B will not be a statutory instrument.

Section 63: Accounts, annual reports, and forward plans

  1. This section amends section 43 of and paragraph 27 of Schedule 7 to the NHS Act 2006 and sections 155 and 156 of the 2012 Act.
  2. Section 155 of the 2012 Act contains a number of prospective amendments to paragraphs 24 and 25 of Schedule 7 to the NHS Act 2006. Section 155 was never brought into force; it looked to substitute the regulator for the Secretary of State in relation to directions to Foundation Trust as to form and content of their accounts. To allow for greater flexibility on how accounts are to be prepared, those provisions are repealed through paragraph (2)(a). As a consequence of the need for greater flexibility in the preparation of accounts, sections 43(3B) and (3C) of the NHS Act 2006, which contain provisions relating to the content of Foundations Trust’s forward plan, and paragraphs 27(2) and (3) of Schedule 7 to the NHS Act 2006, which contains further provisions relating to a Foundation Trust’s forward plan, are to be repealed though section 54(1) of this Act.

Section 64: NHS foundation trusts: joint exercise of functions

  1. This section adds in a new section 47A into the NHS Act 2006 and allows NHS foundation trusts to carry out its functions jointly with another person, should the NHS foundation trust consider such arrangements to be appropriate.

Section 65: NHS foundation trusts: mergers, acquisitions and separations

  1. This section amends sections 56 (mergers), 56A (Acquisitions) and 56B (Separations), of the NHS Act 2006.
  2. Subsection (2) amends section 56(2) to remove the previous requirement that an application to merge a Foundation Trust with another Foundation Trust or an NHS Trust established under section 25 of the NHS Act 2006, must be supported by the Secretary of State where one of the parties is an NHS Trust.
  3. The amendment to section 56(4) places a duty on NHS England to grant the application if it satisfied that necessary steps have been taken to prepare for the dissolution and the establishment of the new trust and the Secretary of State approves the grant of the application or otherwise must refuse the application.
  4. Subsection (3)(a) amends section 56A(3) to remove the requirement that an application to acquire a Foundation Trust or an NHS Trust established under section 25 of the NHS Act 2006, must be supported by the Secretary of State where one of the parties to be acquired is an NHS Trust.
  5. Subsection (3)(b) amends subsection 56A(4), placing a duty on NHS England to grant the application if it is satisfied that necessary steps have been taken to prepare for acquisition and the Secretary of State approves the grant of the application or otherwise must refuse the application.
  6. Subsection (4) amends section 56B(4) (separations) placing a duty on NHS England to grant the application if it is satisfied that necessary steps have been taken to prepare for the dissolution of the trust and the establishment of each of the proposed new trusts and the Secretary of State approves the grant of the application or otherwise must refuse the application.

Section 66: Transfers on dissolution on NHS foundation trusts

  1. This section amends subsections 57A(3) and (4) of the NHS Act 2006 and inserts a subsection (5). The amendment to subsection 57A(3) removes the requirement for the grant of an application made by a Foundation Trust for dissolution to be based on the trust having no liabilities.
  2. The amendment to subsection 57A(4) requires the order made by NHS England once the application for dissolution has been granted, to transfer, or provide for the transfer of, the property and liabilities (including criminal liabilities) to another Foundation Trusts, an NHS Trust established under section 25 of the NHS Act 2006, or the Secretary of State.
  3. The inclusion of subsection 57A(5) imposes a duty on NHS England to include in the order a provision for the transfer of any employees of the dissolved Foundation Trust.

Section 67: NHS foundation trusts: wider effect of decisions

  1. This provision, which is inserted into the NHS Act 2006 as the new section 63A, sets out a new duty on NHS foundation trusts, which also applies to the other "relevant bodies". The "relevant bodies" are integrated care boards (new section 14Z43), NHS England (new section 13NA) and NHS Trusts in England (new section 26A).
  2. This duty has been described operationally as the "triple aim" duty.
  3. Subsection (1) provides that foundation trusts will be under a duty, in making a decision about the carrying out of their functions, to have regard to all likely effects of their decisions on three areas: the health and well-being of the people of England (paragraph (a)), the quality of services provided or arranged by relevant bodies (paragraph (b)) and the efficiency and sustainability of resources used by the relevant bodies (paragraph (c)).
  4. The reference in the subsection to "all" likely effects means that NHS foundation trusts will have to consider, under paragraphs (b) and (c), the effects of the decision both on its own quality of services and resource use and those of other relevant bodies.
  5. Subsection (2) excludes decisions relating to services provided to a particular individual (e.g. individual clinical decisions or highly specialist commissioning decisions concerning an individual patient) from this duty. Under subsections (b) and (c), it also specifies that when complying with the Triple Aim duty, the foundation trust must consider inequalities in health and well-being and the benefits obtained from services when considering the effects of their decisions on the areas in subsection(1)(a) and (b).
  6. Subsection (3) provides that foundation trusts must have regard to guidance on the discharge of this duty published by NHS England (under section 13NB).

Section 68: NHS Foundation Trusts: duties in relation to climate change

  1. Duties as to climate change: The Act introduces a new duty on NHS Foundation Trust that will require each Foundation Trust to have regard to how it can contribute to the achievement of the government’s legislative targets regarding the environment and climate change. These are specified as: the target set under Section 1 of the Climate Change Act 2008 (the Net Zero emissions targets, currently set for 2050) and the targets due to be set under Section 5 of the Environment Act 2021, which will pertain to such matters as air quality, water quality and species abundance (among others). In addition, the duty requires each Foundation Trust to have further regard to how it may support efforts to adapt to the predicted impacts of climate change as set out in reports brought forward under section 56 of the Climate Change Act 2008. The duty applies to Foundation Trusts when exercising any of their functions. Subsection (2) requires Foundation Trusts to have regard to any guidance issued by NHS England on how it is to discharge this duty.

NHS Trusts and NHS Foundation Trusts: transfer schemes

Section 69: Transfer schemes between trusts

  1. This section inserts section 69A into the NHS Act 2006.
  2. Section 69A, subsection 1 allows for NHS England to make one or more schemes to transfer property, rights and liabilities from a relevant NHS body to another relevant NHS body. A relevant NHS body is defined in subsection (8).
  3. Subsection (2) states that the application for a transfer scheme must be made jointly by the relevant NHS bodies, and state the property, rights and or liabilities which the NHS bodies wish to transfer.
  4. Subsection (3) allows NHS England to grant an application for a transfer scheme when it is satisfied that any steps it considers necessary have been taken. This could include NHS England carrying out a review of the transfer and requiring the relevant NHS bodies to make a compelling case for such transfers (for example, patient benefits or value for money).
  5. Subsection (4) sets out what may be included in a transfer scheme, such as property, rights, liabilities and criminal liabilities.
  6. Subsection (5) sets out what can be provided to the transferee as part of the transfer scheme, any continued role of the transferor and the scope of the transfer scheme generally (for example enabling the transfer scheme to make provisions for shared ownership or use of property).
  7. Subsection (6) allows for a transfer scheme to be modified, and for those modifications to have effect from when the transfer scheme originally came into effect.
  8. Subsection (7)(a) defines rights and liabilities to include rights and liabilities in relation to employment contracts.
  9. Subsection (7)(b) notes a transfer of property includes a grant of a lease.
  10. Subsection (8) defines a relevant NHS body as an NHS Trust or an NHS foundation trust. It also defines TUPE regulations as the Transfer of Undertakings (Protection of Employment) Regulations 2006.

Section 70: Trust special administrators

  1. This section introduces Schedule 8 to the Act which amends Chapter 5A of the NHS Act 2006 (Trust Special Administrators: NHS trusts and NHS foundation trusts).

Schedule 8: Trust special administrators: NHS trusts and NHS foundation trusts

  1. This Schedule outlines the changes to the process and authorisation for the appointment of trust special administrators, including the reporting mechanisms, amending sections of Part 2, Chapter 5A (Trust Special Administrators: NHS Trusts and NHS foundation trusts) of the NHS Act 2006 as follows.
  2. Paragraph 2 of the Schedule substitutes a new section 65B to reflect the formal merger under this Act of the TDA and Monitor into NHS England.
  3. Subsection 65B(1) transfers the responsibility for appointing a trust special administrator to an NHS trust from the Secretary of State to NHS England. Subsection 65B(2)(a) introduces a requirement for NHS England to appoint a trust special administrator if required to do so by the Care Quality Commission (CQC), as is already required for NHS foundation trusts. Otherwise, under section 65B(2)(b), NHS England can only make the order to appoint if it considers it to be in the interest of the health service and the Secretary of State has approved the making of the order.
  4. Subsection 65B(3) enables the CQC to require NHS England to make an order under section 65B(1) if it is satisfied that there is a serious failure by the NHS trust to provide services that are of sufficient quality to be provided under the NHS Act 2006. Subsection 65B(4) adds any integrated care board in whose area the trust has hospitals, establishments or facilities to the list of bodies that the CQC must consult.
  5. Similarly, in a case where NHS England is not required by the CQC to make an order to appoint a trust special administrator and it is considering making an order under paragraph 65B(2)(b), section 65B(5) adds any integrated care board in whose area the trust has hospitals, establishments or facilities to the list of bodies that NHS England must consult before making the order.
  6. Subsection (6) and (7) of the new section 65B state that, in making an order to appoint a trust special administrator, NHS England must specify the date which the appointment is to take effect (which must be within 5 working days of the order being made) and must lay before Parliament a report stating the reasons for making an order.
  7. Subsections (8), (9) and (10) of new section 65B outline the terms in which a trust special administrator appointment is made, and the conditions placed on the trust special administrator.
  8. Section 65BA places a duty on the CQC to provide to NHS England and the Secretary of State a report on the safety and quality of the services provided by the NHS trust which is to be subject to the trust special administrator order that NHS England has been required by the CQC to make, as is currently required in relation to NHS foundation trusts.
  9. Paragraphs 3 and 4 replace the name of the regulator, formerly Monitor, with NHS England. NHS England is now responsible for appointing a trust special administrator for foundation trusts, The requirement to indemnify a trust special administrator has been removed from section 65D(12) and replaced with a provision allowing NHS England to pay remuneration and expenses, which replicates the provision in relation to NHS trusts.
  10. Paragraph 5 of the schedule amends section 65F, replacing the requirement for the trust special administrator to provide a draft report to the Secretary of State with one to provide a draft report to both the Secretary of State and NHS England if the report is in relation to an NHS trust. In the case of a foundation trust, the draft report is now to be provided to NHS England, having previously been provided to Monitor. The draft report is to contain recommended action which, in the case of an NHS trust, is to be taken by NHS England or the Secretary of State and, in the case of a foundation trust, is to be taken by NHS England and the draft is to be published (sections 65F(1) and 65F(1A)).
  11. Section 65F(1B) sets out the circumstances in which a trust special administrator may not provide a draft report under subsection (1A).
  12. When the trust special administrator is preparing the draft report it must consult those to whom the trust provides goods or services under the NHS Act 2006 and which NHS England directs the administrator should consult, and the CQC (section 65F(2)).
  13. After NHS England has received the draft report in respect of an NHS trust or a foundation trust, it must lay the draft report before Parliament (section 65F(3)). It was previously for the Secretary of State to lay the draft before Parliament in respect of NHS trusts and for Monitor as the regulator to lay the draft report before Parliament in relation to foundation trusts.
  14. If NHS England decides not to provide the administrator with the statement under section 65F(1B)(b), it is required to give a notice of the reasons for its decision to the administrator, publish the notice and lay a copy of it before Parliament (section 65F(6)). Where the CQC decides not to provide the administrator with a statement to the effect mentioned in section 65F(1C), it must give a notice of the reasons for its decisions to the administrator and NHS England, publish the notice and lay a copy of it before Parliament (section 65F(6A)).
  15. Paragraph 6 of this schedule makes amendments to Section 65G, replacing the references to the regulator to NHS England and including amended or new provisions for NHS England and CQC.
  16. Section 65G(5) is replaced by the insertion of a new subsection which replaces the name of "The Board" with "NHS England" with the substance of that provision remaining unchanged.
  17. A new subsection (5A) is inserted which amends the requirements placed on the CQC where it decides not to provide a statement to the effect mentioned in subsection (4A); the CQC is required to give notice of its reasons for that decision not only to the administrator, but now also to NHS England. That notice continues to be published and laid before Parliament.
  18. Paragraph 7 of this schedule makes amendments to section 65H.
  19. Sections 65H(7) and (8), which deal with persons from whom the trust special administrator must seek written responses to the draft report, are now amalgamated into section 65H(7) in light of the earlier repeals of certain provisions. In addition, "the Board" is removed as a body from whom a written response should be sought, and NHS England may now direct the administrator to hold a meeting with any person and seek their responses (section 65H(9A)).
  20. Sections 65H(10) and (10A) have been replaced by a new section 65H(10) so that the Secretary of State may now direct NHS England as to the persons from whom it should direct the administrator to request a written response and seek a response through holding a meeting.
  21. As NHS England will be responsible for appointing a trust special administrator for both NHS trusts and foundation trusts, section 65H(13) has been repealed as this is dealt with in new section 65H(10).
  22. Paragraph 8 of this schedule makes amendments to section 65I, to include a requirement for the trust special administrator to report to NHS England as well as the Secretary of State with respect NHS trusts.
  23. The amendments require the trust special administrator to provide its final report with the recommended actions to NHS England and the Secretary of State in relation to an NHS trust, and to NHS England in the case of a foundation trust. The period for receipt of the report remains unchanged (section 65I(1) and (1A)).
  24. Subsection (3) is amended to place a duty on NHS England rather than Secretary of State to lay the final report in parliament.
  25. Paragraph 9 of this schedule makes amendments to section 65J, to reflect the inclusion of new subsection 65I(1A) and the change in approval for an extension to be granted now resting with NHS England, not the Secretary of State (section 65J(2)).
  26. Section 65J(5) is repealed as NHS England regulates both NHS trusts and foundation trusts.
  27. Paragraphs 10 and 11 of this schedule substitute a new section 65K. In relation to NHS trusts, both NHS England and the Secretary of State are to receive the administrator’s final report which will state which action, if any, either are to take. The Secretary of State and NHS England are required to consult each other before taking any decision to take action in relation to a trust. After a decision has been taken, the party taking the action must publish a notice of the decision and reason for it and lay a copy of the notice before Parliament as soon as reasonably practicable. This reflects the responsibility that NHS England now has for the appointment of trust special administrators.
  28. Paragraphs 12 to 14 of this schedule replace references to the "regulator" with "NHS England".
  29. Paragraph 15 of this schedule amends section 65KD. If the Secretary of State is not satisfied with the final report and publishes a notice to say that an integrated care board has failed to discharge a function, the integrated care board is to be treated as having failed to discharge the function allowing the Secretary of State to exercise NHS England’s power of direction over integrated care boards in section 14Z61 of the NHS Act 2006 while prohibiting NHS England from exercising that power (section 65KD(5)).
  30. The provisions allowing the Secretary of State to exercise the Board’s functions if the notice stated that it was the Board who had failed to discharge its functions have been repealed as the Secretary of State’s new power of direction over NHS England in section 45 can achieve the same effect.
  31. The provisions allowing the Secretary of State to exercise functions of Monitor if the notice stated that the trust special administrator or Monitor had failed to discharge their duties have been repealed now that NHS England replaces Monitor as the regulator and the Secretary of State’s new power of direction over NHS England can achieve the same effect.
  32. Paragraph 16 of this schedule makes amendments to section 65L.
  33. In relation to NHS trusts, if both the Secretary of State and NHS England decide not to dissolve a trust, NHS England must make an order specifying the date when the appointment of the trust special administrator and the suspension of the chair and directors of the trust comes to an end (section 65L(1) and (2)).
  34. In relation to a foundation trust, if the Secretary of State decides under section 65KD(9) not to dissolve the trust or decides they are satisfied under section 65KB(1) or 65KD(1) in respect of the matters stated within those provisions, and the action recommended in the final report is not to dissolve the trust, then NHS England must make an order bringing the appointment of the trust special administrator and the suspension of the chair and directors of the trust to an end (section 65L(2A) and (2B).
  35. Paragraph 17 of this schedule amends section 65LA, replacing in the reference to "the regulator" with "NHS England".
  36. Paragraph 18 of this schedule amends section 65M, to provide that NHS England, not the Secretary of State, is responsible for appointing a replacement administrator.
  37. Section 65M(3) is repealed in light of the fact that NHS England is the regulator for both NHS Trusts and foundation trusts.
  38. Paragraph 19 amends section 65N, by placing the duty on NHS England, instead of the Secretary of State, to publish guidance for trust special administrators. Section 65N(4) is repealed in light of the fact that NHS England is the regulator for both NHS trusts and foundation trusts.
  39. Paragraph 20 makes consequential amendments to section 65O.
  40. Paragraph 21 amends section 272 (orders, regulations, rules and directions) so that an order made under section 65L(2B) is not subject to a parliamentary procedure, which aligns with orders made under section 65L(2).

Joint Working and Delegation of Functions

Section 71: Joint working and delegation arrangements

  1. This section inserts new provisions into the NHS Act 2006.
  2. Section 65Z5 Joint working and delegation arrangements. Under subsection (1), any of the bodies set out or prescribed under subsection (2) may arrange for one of its functions to be exercised by or jointly with one of the other bodies under subsection (2), or a local authority, or a combined authority. This includes functions that have already been delegated to a relevant body under this section. Regulations made under subsection (2)(e) may set out other bodies to be added to the definition of a relevant body and be party to the arrangements under subsection (1). It will also be possible to set out in regulations under subsection (3) which functions are not subject to arrangements made under subsection (1), or the extent to which they could be included in arrangements or where certain conditions should apply to the exercise of the power at subsection (1). Under subsection (4), powers under this section 65Z5 may be exercised on such terms as may be agreed, including terms of payment as well as terms prohibiting or restricting the further onward delegation of a function. Under subsection (6), a body to which a function has been delegated will acquire the rights and liabilities that arise or may arise from the exercise of that function, and these rights and liabilities are enforceable by or against that body only.
  3. Section 65Z6 Joint committees and pooled funds. This section applies where a body listed under section 65Z5(2) has agreed to jointly exercise a function with another body listed or prescribed under section 65Z5(2), or a local authority or a combined authority. Under subsection (2), the parties jointly exercising the function may set up a joint committee in order to exercise the function. Under subsection (3), the parties jointly exercising the function may also establish and maintain a pooled fund in order to exercise the function. A pooled fund is defined as a fund to which the parties jointly exercising the function have contributed and out of which payments can be made in the exercise of functions under the arrangements. Under subsection (4), the parties jointly exercising the function may agree between themselves the terms of their respective liabilities in relation to the joint exercise of the function. The intention is to issue guidance under section 65Z7 about how joint committee arrangements could be administered and how liability arrangements could be decided. Regulations made under section 65Z5(3) may also impose conditions on what functions can be placed in a joint committee and how it should operate.
  4. Section 65Z7 Joint working and delegation: guidance by NHS England. Under subsection (1), NHS England can issue guidance concerning the joint working and delegation arrangements set out under sections 65Z5 and 65Z6. Under subsection (2), all bodies listed under section 65Z5(2) or prescribed under subsection (2)(e) must have regard to that guidance.
  5. Under subsection (3) of section 71 of this Act, section 75(7B) of the NHS Act 2006, which details arrangements between NHS bodies and local authorities, is amended so that where a combined authority is exercising an NHS function as part of the arrangements under section 65Z5, it can be treated as an NHS body under section 75 of the NHS Act 2006.

Section 72: References to functions: treatment delegation arrangements etc.

  1. This section inserts a new section 275A into the NHS Act 2006. It is intended to produce a more consistent approach to the way in which functions are referred to in that Act.
  2. The starting point is that a general reference to a person’s functions is capable of covering functions delegated to the person, although there may be something about the legislative context to indicate that this is not the intention in relation to a particular reference.
  3. The NHS Act 2006 does not take an entirely consistent approach in relation to delegated functions. In some places where a function can be delegated to another, express provision is made to the effect that a reference elsewhere to the recipient’s functions includes a reference to the delegated function so far as exercisable by them (see, for example, previous sections 13Z4(2) and 14Z24(2)). In other places this is not spelt out. The contrast is potentially unhelpful and new section 275A seeks to address this issue.
  4. There may be some provisions within the NHS Act 2006 where the starting point explained above would not produce the desired policy result. For example, it could be that a particular reference to the functions of NHS England should not, as a matter of policy, include a reference to public health functions delegated to it by the Secretary of State under section 7A. To deal with this kind of case, new section 275A(2) confers a power to specify places where a reference to a person’s functions do not include delegated functions. Given this power to create exceptions, it seems helpful to articulate the starting point expressly for the purposes of the whole Act rather than leaving it to implication: see new section 275A(1).
  5. It is not feasible to tackle these issues expressly across all health legislation and in any event they have arisen in the NHS Act 2006 primarily due to the inconsistent approach that has been taken in previous amendments to the Act. In relation to other legislation that, for example, refers to the functions of NHS England or an integrated care board it is still proposed to rely on the general starting point explained above, which one may expect to apply unless the context suggests otherwise.
  6. However, there are a few places outside the NHS Act 2006 where it is thought that silence may give rise to genuine doubt as to what is intended, so those have been dealt with expressly. Examples are where express provision has been made previously (in section 13Z4(3) of the NHS Act 2006 or in other Acts) and it is considered necessary to continue that approach to avoid confusion. See, for example, the amendments to sections 197 and 250 of the Health and Social Care Act 2012.

Schedule 9: References to functions: treatment of delegation arrangements etc

  1. This Schedule makes amendments to various enactments as a result of the insertion into the NHS Act 2006 of new section 7B, new section 65Z5 and new section 275A.
  2. New sections 7B and 65Z5 create additional ways in which the functions of one person or body may be exercised by another. New section 7B enables the Secretary of State to direct NHS England or an integrated care board to exercise the Secretary of State’s public health functions, and new section 65Z5 enables a variety of bodies to arrange for another body to exercise their functions either for them, or jointly with them. These new provisions add to the power for the Secretary of State to make arrangements under section 7A for NHS England, a integrated care board, a combined authority or a local authority to exercise the Secretary of State’s public health functions ("section 7A arrangements"), and the existing power in section 75 for local authorities and NHS bodies to work jointly ("section 75 arrangements").
  3. This means that there is a need to revisit the provisions in the NHS Act 2006 and other primary legislation which state expressly that a reference to the functions of NHS England or an integrated care board include the exercise of public health functions of the Secretary of State delegated under section 7A arrangements. The new sections also affect provisions in the NHS Act 2006 and other legislation which include in a description of the public health functions of a local authority those functions which the local authority is exercising pursuant to section 7A arrangements.
  4. The amendments to descriptions of the functions of NHS England and integrated care boards in the NHS Act 2006 therefore generally adopt a broader approach, in reliance on new section 275A. The amendments include references to arrangements made "by virtue of" the NHS Act 2006, as opposed to "under" it, to reflect the fact that functions may have been delegated in one or more of the ways described above. The amendments to sections 73A – 73C, which deal with local authority public health functions, ensure that the public health functions of the Secretary of State which are being exercised by an authority pursuant to the delegation or sharing arrangements in sections 65Z5 or 75 are captured.
  5. The amendments to other primary legislation in this Schedule are generally intended to take a similarly broad approach to a description of the functions of NHS England or an integrated care board under the NHS Act 2006, or to services arranged pursuant to such functions. The substituted wording is intended to reflect the range of ways in which those bodies could be exercising functions on behalf of another. However, in certain cases it has been necessary or appropriate to make a specific reference to the routes by which functions may be delegated. See for example section 26 of the Local Government Act 1974, where the functions of the authority which may be subject to investigation by the local commissioner are expressed as including those public health functions of the Secretary of State which the authority may be exercising in pursuance of section 7A, 65Z5 or 75 arrangements.
  6. The amendment made to the Local Government and Public Involvement in Health Act 2007 is driven by the repeal of sections 13Z4(2) and (3) and 14Z24(2) and (3), and the new approach to functions in section 275A of the NHS Act 2006. It applies section 275A to sections 116 to 116B of the 2007 Act. Those sections deal with joint strategic needs assessments, which can include health needs that could be met through the exercise of the functions of NHS England and integrated care boards, and the amendment ensures that such functions would include delegated functions.

Collaborative Working

Section 73: Repeal of duties to promote autonomy

  1. This section amends the NHS Act 2006 by removing the Secretary of State and NHS England’s duties to promote autonomy.
  2. The rationale for removing these duties is to ensure that they do not conflict with duties for system partners to cooperate and think more broadly about the interests of the wider health system. NHS England will continue to function as an arm’s length body, but the removal of these duties also allows for the introduction of section 45 which gives the Secretary of State the ability to direct NHS England in regard to the exercise of their functions. The Secretary of State, when considering whether to place requirements on NHS England, will have to make a judgement as to whether these are in the interests of the public.

Section 74: Guidance about joint appointments

  1. This section inserts a new section 13UA into the NHS Act 2006. Subsections (1) and (2) give NHS England the ability to issue guidance concerning joint appointments between relevant NHS commissioners and relevant NHS providers; relevant NHS bodies and local authorities; and relevant NHS bodies and Combined Authorities. In this section references to relevant NHS bodies are to NHS England, integrated care boards, English NHS trusts and NHS foundation trusts. This guidance could provide a clear set of criteria for organisations to consider when making joint appointments. Under subsection (3), relevant NHS bodies are required to have regard to the guidance. Under subsection (4), ahead of publishing or revising any guidance, NHS England is required to consult with appropriate persons.

Section 75: Co-operation by NHS bodies etc

  1. This section amends sections 72 and 82 of the NHS Act 2006 and section 96 of the 2012 Act.
  2. Section 72 of the NHS Act 2006 imposes a duty on NHS bodies, including some Welsh NHS bodies, to co-operate with each other. Section 75(2) inserts a new power into section 72 of the NHS Act 2006 for the Secretary of State to make guidance on how this duty is discharged. It also imposes a duty on NHS bodies, except for Welsh NHS bodies, to have regard to this guidance.
  3. Section 82 of the NHS Act 2006 imposes a duty on NHS bodies and local authorities (including Welsh NHS bodies and Welsh local authorities) to co-operate with one another in order to advance the health and welfare of the people of England and Wales. S 75(3) inserts a new power for the Secretary of State to make guidance related to England. It also imposes a duty on NHS bodies and local authorities, except for Welsh NHS bodies and Welsh local authorities, to have regard to this guidance.
  4. Section 96 of the 2012 Act specifies the purposes for which NHS England (previously Monitor) can set or modify licensing conditions of NHS health service providers. Previously section 96(2)(g) and section 96(3) of the 2012 Act allow the licence conditions to be modified if the purpose of modification is to enable co-operation between providers where that achieves one or more of the objectives of: (a) improving the quality of health care services for the NHS or the efficiency of their provision; (b) reducing inequalities in people’s ability to access those services; and (c) reducing inequalities in the outcomes people achieve in the provision of those services.
  5. Section 75(4)(a) of the Act amends section 96(2)(g) and section 96(3) of the 2012 Act so that the section 96(2)(g) purpose of enabling co-operation between providers of health care services no longer needs to be dependent upon achieving the objectives in (a), (b) or (c) before it can be considered as a basis for modifying the licence conditions. This does not mean that the licence cannot be modified to achieve the objectives set out in (a), (b), and (c) in connection with subsections 2(e) and (f) but means that modification of the licence under section 96(2)(g) is no longer conditional on achieving those objectives.
  6. Subsection (4)(a) also expands section 96(2)(g) so that licence conditions can be modified to enable, promote and secure co-operation not just amongst NHS health service providers, but also between NHS bodies as defined in section 72 of the NHS Act 2006 and local authorities in England.

Section 76: Wider Effect of decisions: licensing of health care providers

  1. Section 96(2) of the 2012 Act specifies the purposes for which NHS England (previously Monitor) may set or modify the conditions contained in the licences which any provider of health care services for the purposes of the NHS must hold. In light of the creation of the ‘triple aim’ duty for NHS England, integrated care boards, NHS Foundation Trusts and NHS Trusts, a new purpose for which licence conditions may be set or modified is created.
  2. This section inserts new paragraph (da) into section 96(2). Paragraph (da) creates a further purpose for which to NHS England may set conditions, namely that of ensuring that decisions are made with regard to all of their likely effects on the three factors which are included in the new "duty to have regard to the wider effect of decisions" new sections 14Z43, 13NA, 26A and 63A being inserted into the NHS Act 2006.
  3. The new subsection (2A) provides the list of matters referred to at the new paragraph (da), which are the same as the matters in the new sections 14Z43, 13NA, 26A and 63A being inserted into the NHS Act 2006. Subsection (2B) defines the reference to "relevant bodies" in subsection (2A).

NHS Payment Scheme

Section 77: The NHS payment scheme

  1. This section inserts Schedule 10 and replaces the national tariff with the NHS payment scheme and makes provisions relating to the NHS payment scheme.

Schedule 10: The NHS payment scheme

  1. This Schedule amends the national tariff provisions in the 2012 Act to introduce the NHS payment scheme, the new system for determining the price to be paid by commissioners for health care services.
  2. Paragraph 2 changes the name of the national tariff to the NHS payment scheme in section 97 of the 2012 Act which deals with conditions of licences for health care service providers.
  3. Paragraph 3 replaces Chapter 4 of Part 3 of the 2012 Act with new sections 114A to 114F to make provision about the NHS payment scheme.
  4. New section 114A(1) places a duty on NHS England to publish a document which contains rules for determining the price payable by a commissioner for health care services provided for the purposes of the NHS and for the services that are provided through arrangements made by NHS England or an integrated care board under the Secretary of State’s public health functions under section 7A or 7B of the NHS Act 2006.
  5. Subsection (2) places duties on the commissioners and providers of services mentioned in subsection (1) to comply with rules made under that subsection.
  6. Subsection (3) sets out what rules may do and what they may specify. For example, this could include specifying prices or specifying a formula as a basis to determine prices; making different provision for services by reference to other factors; or the rules may confer a discretion on the commissioner of a service or on NHS England.
  7. Subsections (4) and (5) state that rules under subsection (1) can allow or require prices to be agreed between commissioners and providers of a service, and, where they are so agreed, the rules may set out how they are to be agreed and whether they are to be published.
  8. Subsection (6) retains in substance the provision formerly in section 119(1) of the 2012 Act which seeks to secure that the prices payable for the provision of services within the scope of the NHS payment scheme result in a fair level of payment for providers of those services, by ensuring that regard is had to cost differences and to differences in the range of services that providers provide.
  9. Subsection (7) retains in substance the provision formerly in section 116(4)(c), which allows the NHS payment scheme to make rules about making payments to providers in relation to the service being provided.
  10. Subsection (8) allows the NHS payment scheme to contain guidance on the application of the rules and subsection (9) specifies that a commissioner is required to have regard to that guidance.
  11. Subsection (10) in substance replicates what was formerly in section 116(12) to clarify that the NHS payment scheme has effect for the period specified in it or, where a new edition takes effect before the end of that period, until the new edition takes effect.
  12. New section 114B provides NHS England with a power of direction over commissioners where they fail to comply with the rules in the NHS payment scheme.
  13. Section 114C sets out the requirements on NHS England to carry out an impact assessment and consultation on the NHS payment scheme. It places a duty on NHS England to carry out an impact assessment or publish a statement if it concludes that assessment is not needed, before publishing the NHS payment scheme. Before publishing the NHS payment scheme NHS England must also consult each integrated care board, relevant providers and other persons who NHS England considers appropriate. Section 114C(3) to (8) sets out the consultation process and the definition of a relevant provider for these purposes. This section draws on what was formerly section 69 (duty to carry out impact assessments) and section 118 (consultation on proposals for the national tariff) of the 2012 Act.
  14. Section 114D replaces what was formerly section 120 of the 2012 Act and deals with objections to the proposed NHS payment scheme during the consultation period. Where a prescribed percentage of integrated care boards or providers object to the proposed NHS payment scheme, NHS England is required to consult such persons as appear to be representative of the integrated care boards or relevant providers who objected (section 114D(1) to (3)). After that point, if NHS England decide to make significant amendments and consider it would be unfair to make the amendments without further consultation, NHS England must reconsult on the revised NHS payment scheme (section 114D(4)).
  15. Should NHS England decide not to amend the NHS payment scheme following objections, it may publish the scheme but must publish a notice to explain its decision, and share it with integrated care boards and relevant providers who objected to the proposed scheme (section 114D(5)).
  16. New section 114E(1) sets out how amendments of the NHS payment scheme are made and allows NHS England to revise the payment scheme during the period for which it operates, on the condition that NHS England must be satisfied that any revisions are not significant enough to require the publication of a new NHS payment scheme.
  17. When deciding whether the amendments are significant enough to require publication of a new NHS payment scheme NHS England must have regard to: the proportion of integrated care boards and relevant providers that would be affected; the impact of such revisions on integrated care boards and relevant providers; whether any integrated care boards or relevant providers would be disproportionately affected; and the amount of any increase or decrease in prices resulting from the revisions (section 114E(2)).
  18. Section 114E(3) places a duty on NHS England to publish the NHS payment scheme as amended.
  19. Subsection (4) of section 114E requires NHS England to consult with integrated care boards, relevant providers and any other appropriate persons that would be affected by the proposed amendments to the NHS payment scheme before making the amendments.
  20. Subsection (5) requires NHS England to publish a notice specifying the proposed amendments and the period for which the consultation period will operate. The consultation period is defined in subsection (6) as 28 days from the day after which the notice is published. Under subsection (7), NHS England must share the notice with integrated care boards, relevant providers and any other appropriate persons.
  21. New section 114F sets out the definitions for "commissioner", "the NHS payment scheme" and "relevant provider" as referred to throughout Chapter 4.
  22. Paragraph 4 of Schedule 10 amends section 304(5)(g) of the 2012 Act to refer to the NHS payment scheme rather than the national tariff, to ensure that regulations made under section 114D(1)(b) setting out the objection percentages are subject to the affirmative procedure.

Patient Choice and Provider Selection

Section 78: Regulations as to patient choice

  1. This section amends the NHS Act 2006 to insert provisions relating to patient choice.
  2. Subsection (2) amends the existing section 6E which allows regulations to place "standing rules" on commissioners. The existing power to issue regulations under this section is changed from a "may" to a "must". This and the obligation inserted as a new subsection 1A means that these regulations must contain provisions about how NHS England and integrated care boards will allow patients to make choices about their care. Subsection (2) also inserts provision stating that the regulations may make other provisions on steps NHS England and integrated care boards must take to protect and promote the rights of people to make choices where those rights arise from these regulations or are described in the NHS constitution. The existing subsection (2)(c) of section 6E in the NHS Act 2006 is removed as it has been replaced by these new provisions.
  3. Subsection (3) inserts a new section 6F that provides an enforcement mechanism for NHS England to enforce the patient choice requirements made under 6E. Under new section 6F(1) NHS England may investigate an integrated care board in relation to their compliance with the regulations made under section 6E and, under section 6F(2) NHS England may issue directions to integrated care boards to prevent, remedy, or mitigate the effects of failures. Section 6F(3) provides that, during or following an investigation, NHS England may accept an undertaking from the integrated care board that it will take actions regarding the actual or likely failure to comply. If NHS England accepts an undertaking, by virtue of section 6F(4), it may not continue to investigate or issue directions relating to the area of the undertaking, unless the integrated care board fails to comply with the undertaking. Section 6F(5) requires NHS England to take partial compliance into account.
  4. Subsection (3) also inserts the new section 6G. Section 6G(1) requires NHS England to publish guidance on how it intends to exercise its powers to investigate, direct on, and accept undertakings about patient choice under the new section 6F and Schedule 1ZA. Section 6G(2) requires NHS England to obtain the approval of Secretary of State before publishing guidance under section 6G(1).
  5. Subsection (4) amends the existing provision in the NHS Act 2006 on NHS England’s annual report to require the report to include an assessment of how effectively NHS England discharges its duties under the patient choice regulations made under those sections inserted by this provision and the existing duty to enable patient choice.
  6. Subsection (5) gives effect to Schedule 11 of the Act, which inserts the new Schedule 1ZA (undertakings by integrated care boards) into the NHS Act 2006.

Schedule 11: Patient choice: undertakings by integrated care boards

  1. This schedule contains further details about the procedure for undertakings under the new section 6F inserted into the NHS Act 2006 by section 78 of the Act.
  2. Paragraph 2 outlines a requirement for NHS England to publish a procedure for entering into undertakings and allows NHS England to revise this and republish it. Both revision and initial publication require NHS England to consult those they think appropriate to consult.
  3. Paragraph 3 describes that, on accepting an undertaking, NHS England must publish it but remove commercial information that would harm business interests or information related to a person’s private affairs that would harm their interests.
  4. Paragraph 4 allows the undertaking to be varied by mutual agreement of the integrated care board giving the undertaking and NHS England.
  5. Paragraph 5 relates to compliance certificates. When NHS England is satisfied that an undertaking has been complied with they must issue a "compliance certificate". An integrated care board that has given an undertaking may apply to NHS England at any time for a compliance certification with the information and in a manner that NHS England requires. NHS England must decide, and notify the applicant, within 14 days beginning with the day after receiving the application.
  6. Paragraph 6 outlines an appeal process. An integrated care board that has had an application for a compliance certificate refused can appeal to the First-tier Tribunal on the grounds that the decision is based on an error of fact, is wrong in law, or is unfair or unreasonable. The Tribunal may confirm NHS England’s decision or rule that it has no effect.
  7. Paragraph 7 describes that, when NHS England considers that an integrated care board has supplied inaccurate, misleading, or incorrect information it can treat it as a failure to comply. If it does so, it must revoke any compliance certificates given to that integrated care board.

Section 79: Procurement regulations

  1. This section inserts a new section 12ZB into the NHS Act 2006, after section 12ZA.
  2. Subsection (1) of the new section 12ZB enables the Secretary of State to make regulations in relation to the processes to be followed and objectives to be pursued by relevant authorities in the procurement of health care services for the purposes of the health service in England and the procurement of health care services as part of mixed procurements e.g. with social care services. The term procurement relates to the overall process that commissioners must follow when arranging health care services, the selection of providers to provide those services.
  3. Subsection (2) specifies that the regulations made under subsection (1) must include provision specifying steps to be taken when following a competitive tendering process.
  4. Subsection (3) states that the regulations must, in relation to the procurement of all health care services to which they apply, make provision for the purposes of ensuring transparency, ensuring fairness, ensuring that compliance can be verified and managing conflicts of interest.
  5. Subsection (4) requires that NHS England must publish such guidance as it considers appropriate about compliance with the regulations and subsection (5) places a requirement on the relevant authorities to have regard to the published guidance.
  6. Subsection (6) requires NHS England to obtain the approval of the Secretary of State before publishing guidance.
  7. Subsection (7) specifies the meaning of "relevant authority" in this section (a combined authority, an integrated care board, a local authority in England, NHS England, an NHS foundation trust, an NHS trust established under section 25); and the meaning of "health care service" as the definition given in Part 3 of the 2012 Act, which is all forms of health care provided for individuals, whether relating to physical or mental health.

Section 80: Procurement and patient choice: consequential amendments etc

  1. Subsection (1) removes the reference to the existing regulation making powers on procurement, patient choice and competition from section 12E of the NHS Act 2006 (Secretary of State’s duty as respects variation in provision of health services) and replaces this with the new procurement regulation making power (section 12ZB). Subsection (1) also amends section 272 of the NHS Act 2006 to provide that regulations made under the new section 12ZB will be subject to the draft affirmative procedure.
  2. Subsection (2) removes the existing regulation making powers on procurement, patient choice and competition from the 2012 Act.
  3. Subsection (3) omits paragraph (b) in subsection (7) of Section 40 in the Small Business, Enterprise and Employment Act 2015 (investigation of procurement functions), which references the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.
  4. Subsection (4) revokes the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.

Section 81: Eradicating slavery and human trafficking in supply chains

  1. Subsections (1) and (2) of section 81 insert a new section 12ZC into the NHS Act 2006. Subsection (1) of the new section 12ZC requires the Secretary of State to make regulations with such provision as the Secretary of State thinks appropriate with a view to eradicating the use in the health service in England of goods or services that are tainted by slavery and human trafficking.
  2. Subsection (2) of the new section 12ZC sets out that the regulations may include provision for procurement processes, including provision as to the circumstances in which suppliers must or may be excluded from consideration for the award of a contract; steps that must be taken by public bodies to assess and address the risk of slavery and human trafficking in health service supply chains; and matters to be included in contracts for goods or services procured for the health service.
  3. Subsection (3) of the new section 12ZC defines health service supply chains as supply chains for procuring goods or services for the health service in England; public bodies as bodies exercising functions of a public nature; slavery and human trafficking as defined in section 54(12) of the Modern Slavery Act 2015, which includes conduct which constitutes an offence under a number of slavery and human trafficking acts, including the first part of the Modern Slavery Act 2015, and similar conduct taking place outside of the United Kingdom; and defines goods or services as "tainted" by slavery and human trafficking if it takes place in relation to anyone involved in the supply chain for providing those goods or services.
  4. Subsection (3) of section 81 amends section 272 of the NHS Act 2006 to ensure that any regulations made under this power are subject to the affirmative procedure.

Competition

Section 82: Duty to provide assistance to the CMA

  1. Section 82(1) inserts a new section 13SC into the NHS Act 2006.
  2. Section 13SC(1) places NHS England under a duty to share with the CMA regulatory information that the CMA may require, or which NHS England considers would assist the CMA, in exercising the CMA’s relevant functions. It also requires NHS England to provide any other assistance which the CMA may require in exercising its relevant functions. Section 13SC(2) defines regulatory information as information held by NHS England in relation to its functions under section 13SB(2)(a) or (b) of the NHS Act 2006 (which is being inserted by this Act, and lists NHS England’s regulatory functions) or its functions under provisions being inserted into the NHS Act 2006 by this Act in relation to the enforcement of patient choice and the oversight, support and restructuring of NHS Trusts (the new sections 6F, 27A and 27C of and Schedule 1ZA to the NHS Act 2006).
  3. Section 13SC(2) also defines the CMA’s relevant functions as their functions under the Competition Act 1998 and the Enterprise Act 2002, where those functions are carried out on behalf of the CMA by the CMA Board or a CMA group (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).
  4. Section 82(2) omits Section 80 of the 2012 Act, relating to previous co-operation arrangements between Monitor and the CMA.

Section 83: Mergers of providers: removal of CMA powers

  1. This section amends the NHS Act 2006 to insert a new Section 72A after Section 72.
  2. Section 72A, subsection (1) exempts the merger of two or more relevant NHS enterprises from the merger control regime under Part 3 of the Enterprise Act 2002.
  3. Section 72A, subsection (2) clarifies that the merger of two or more relevant enterprises (e.g. NHS foundation trusts) with one or more enterprises that are not relevant NHS enterprises (e.g., a private healthcare provider) is still in scope of the merger control regime.
  4. Section 72A, subsection (3) defines relevant NHS enterprise as the activities, or part of the activities, of an NHS trust or an NHS foundation trust.
  5. This section also repeals section 79 of the 2012 Act, which specifies that mergers involving NHS foundation trusts do fall within the scope of the merger regime in part 3 of the Enterprise Act 2002.
  6. NHS England, as the national regulator, will continue to review proposed transactions, including mergers or acquisitions, to ensure there are clear patient benefits.

Section 84: Removal of functions relating to competition etc.

  1. This section amends the 2012 Act to remove sections 72 and 73 of that Act. Sections 72 and 73 of the 2012 Act provided for Monitor’s concurrent competition functions with the CMA.
  2. This section also provides for Schedule 12, which contains consequential amendments.

Schedule 12: Removal of functions relating to competition etc

  1. This Schedule contains amendments which are consequential on the removal of Monitor’s functions relating to competition. It amends the:
    • Company Directors Disqualification Act 1986
    • Competition Act 1998
    • Enterprise Act 2002
    • Health and Social Care Act 2012
    • Enterprise and Regulatory Reform Act 2013
    • Care Act 2014

Section 85: Removal of CMA’s involvement in licensing etc.

  1. This section amends the 2012 Act regarding NHS licensing. The licence contains conditions for providers of NHS services, including NHS foundation trusts and other providers. All NHS foundation trusts and most other providers of NHS services (but not NHS trusts) must hold a provider licence.
  2. Subsection (2) removes the need for Monitor (which is being merged into NHS England as part of this Act), to obtain the consent of the applicant to include a special condition in the licence, or to obtain the consent of a licence holder before modifying a special condition of a licence.
  3. Subsection (3) repeals subsections (6) to (9) of section 100 of the 2012 Act. These subsections allow for licence holders to object to amendments to the standard licence conditions and apply certain conditions to Monitor in relation to those objections. It also removes references to section 101 in subsection (11) of section 100.
  4. Subsection (4) repeals section 101 of the 2012 Act, which allows Monitor to refer contested licence conditions to the CMA.
  5. Subsection (5) amends section 103, subsection 3 in the 2012 Act to refer to licensing powers being transferred from Monitor to NHS England and to take account of the repeal of section 101 and Schedule 10 of the 2012 Act.
  6. Subsection (6) removes references to section 142 from section 141 of the 2012 Act. Section 142 is repealed by subsection (7).
  7. Subsection (8) removes paragraphs (d) and (j) of section 304(5) of the 2012 Act, which reference the regulation-making powers in the repealed sections 100(7) and 142 of that Act.
  8. Subsection (9) repeals Schedule 10 of the 2012 Act, which sets out the process for Monitor’s referrals to the CMA in relation to contested licence conditions or a contested levy, as the ability to refer to the CMA in these cases is being removed via the repeal of sections 100(6) to (9) and 142 of that Act.

Miscellaneous

Section 86: Special Health Authorities: removal of 3 year limit

  1. This section removes the legislative provisions that imposed a three-year time limit on any new Special Health Authority.
  2. Subsection (1) repeals section 28 and section 272(6)(zc) of the NHS Act 2006, which were new sections inserted by the 2012 Act (section 48) in order to impose the three-year time limit.
  3. Subsection (2) makes changes to the 2017 Order used to create the NHS Counter Fraud Authority, to reflect that there is no longer an abolition date.
  4. Subsection (3) repeals section 48 of the 2012 Act, which inserted the provisions repealed by subsection (1) into the NHS Act 2006.

Section 87: Tidying up etc provisions about accounts of certain NHS bodies

  1. This section sets out requirements for Special Health Authorities in relation to their accounts and auditing.
  2. Subsection (1) inserts a new section 29A after section 29 of the NHS Act 2006.
  3. Subsection (1) of the new section 29A clarifies that this section applies to Special Health Authorities that perform functions only or mainly in respect of England, or Special Health Authorities that neither perform functions only or mainly in respect of England, nor perform functions only or mainly in respect of Wales.
  4. Subsection (2) of the new section 29A requires Special Health Authorities to keep proper accounts and records.
  5. Subsection (3) of the new section 29A gives the Secretary of State the power to give a direction to a Special Health Authority about the form of its accounts.
  6. Subsections (4), (5), (6) and (7) of the new section 29A place requirements on Special Health Authorities with respect to the preparation of those annual accounts, including a requirement to send copies of accounts to the Secretary of State and the Comptroller and Auditor General for examination and report, and a requirement to lay before Parliament a copy of those accounts and the report of the Comptroller and Auditor General.
  7. Subsections (8) and (9) clarify that the requirements in subsection (2) do not require a Special Health Authority’s annual accounts to include matters relating to a charitable trust of which it is the trustee, and that the directions made under subsection (4) do not have effect in relation to such a charitable trust’s accounts.
  8. Subsection (2) of section 87 inserts paragraph 11A into Schedule 4 to the NHS Act 2006.
  9. Paragraph 11A sets out requirements on NHS Trusts in relation to accounts, record-keeping and audit.
  10. Paragraph 11A(1) requires NHS Trusts to keep proper accounts and records.
  11. Subparagraph (2) of new paragraph 11A gives the Secretary of State the power to give a direction to an NHS Trust about the form of its accounts.
  12. Subparagraph (3) places requirements on NHS Trusts to prepare annual accounts in such form as the Secretary of State may direct.
  13. Subparagraph (4) directs NHS Trusts to the Local Audit and Accountability Act 2014 for provision in relation to their audit.
  14. Subparagraph (5) sets out the role of the Comptroller and Auditor General in examining the accounts and any report on them by the auditor or auditors.
  15. Subparagraph (6) requires an NHS Trust to send audited annual accounts to NHS England by such date as NHS England may direct.
  16. Subparagraphs (7) and (8) clarify that subparagraph (1) does not have any effect in relation to accounts relating to a charitable trust of which the NHS Trust is a trustee, and that sub-paragraph (3) does not require the Trust’s annual accounts to include matters relating to such a charitable trust.
  17. Section 87(3) makes consequential amendments to the National Audit Act 1983, the NHS Act 2006, and the Local Electoral Administration and Registration Services (Scotland) Act 2006.

Section 88: Meaning of "health" in NHS Act 2006

  1. This section amends section 275(1) of the NHS Act 2006 (interpretation) to clarify that "health" includes mental health. Previously provisions of the NHS Act 2006 were inconsistent about whether they mentioned mental health expressly. This amendment mitgates the risk of confusion by making the inclusion of mental health express.

Section 89: Repeal of spent powers to make transfer schemes

  1. Subsection (1) repeals the powers of the Secretary of State in the 2012 Act to make a property transfer scheme or a staff transfer scheme in connection with the establishment or abolition of a body by that Act, or the modification of the functions of a body or other person by or under that Act.
  2. Subsection (2) substitutes a new version of section 302 of the 2012 Act. Section 302 allows for a further transfer scheme in relation to any property, rights or liabilities that were transferred under a scheme under section 300(1) of the 2012 Act (before its repeal) from a Primary Care Trust, a Strategic Health Authority or the Secretary of State to a Special Health Authority or a qualifying company. Such property, rights or liabilities may be transferred under a further scheme to any of the bodies listed in section 302(2). Subsections (3) to (8) of the new section 302 make further provision in relation to those schemes.
  3. Subsection (3) consequentially amends Schedule 1 to the Public Records Act 1958

Section 90: Abolition of Local Education and Training Boards

  1. This section abolishes Local Education and Training Boards (LETBs). In consequence of this, it repeals sections 103 to 107 of and Schedule 6 to and amends sections 100, 108, 119 of, and Schedule 5 to, the Care Act 2014.
  2. Subsection (4) repeals sections 103 to 107 of the Care Act 2014, which set out the local functions of HEE carried out by LETBs.
  3. The amendments set out in subsections (3), (5), (6) and (7) to sections 100, 108 and 119 of, and Schedule 5 to, the Care Act 2014 make consequential amendments to remove references to LETBs.

Section 91: Hospital Patients with care and support needs: repeals etc

  1. Section 91(1)(a) substitutes a new section 74 into the Care Act 2014 to revoke the procedural requirements in the Care Act 2014 which require local authorities to carry out social care needs assessments, in relevant circumstances, before a patient is discharged from hospital, and to grant local areas the flexibility to implement a hospital discharge model best suited to local needs and circumstances.
  2. Subsection (1) of the new section 74 applies where the relevant trust is responsible for an adult hospital patient and considers that the patient is likely to require care and support following discharge from hospital. It places a duty on NHS trusts and foundation trusts to take any steps that they consider appropriate to involve the patient and any carer of the patient as soon as is feasible after it begins making any plans in relation to the patient’s discharge. The aim of this section is that, where appropriate, patients and carers are involved in decision-making about the patient’s onward care from the earliest stages of discharge planning.
  3. Subsection (2) of the new section 74 requires relevant trusts to have regard to any guidance issued by NHS England in performing their duty under subsection (1).
  4. Subsection (3) of the new section 74 provides that, for the purposes of that section, a relevant trust is responsible for a hospital patient if the relevant trust manages the hospital.
  5. Subsection (4) of the new section 74 provides that, for the purposes of that section, an "adult" is a person aged 18 or over; a "carer" is an individual who provides or intends to provide care for an adult, otherwise than by virtue of a contract or as voluntary work; and a "relevant trust" is an NHS trust or an NHS foundation trust. The definition of "carer" for the purposes of this section is broader than the definition elsewhere in the Care Act 2014 as it includes young carers. This will ensure that young carers are involved in discharge planning, where the relevant trust considers it is appropriate to do so.
  6. This section replaces section 74 of the Care Act 2014, which gave effect to Schedule 3 to the Care Act 2014. Subsection (1)(b) of the section repeals Schedule 3 to the Care Act 2014 in its entirety.
  7. Schedule 3 to the Care Act 2014 dealt with the planning of discharge of patients in England from NHS hospital care to local authority care and support. In repealing Schedule 3 to the Care Act 2014 in its entirety, subsection (1)(b) repeals the procedural requirements within that Schedule, which required social care needs assessments to be carried out by the relevant local authority before a patient was discharged from hospital.
  8. Further, in repealing Schedule 3 to the Care Act 2014 in its entirety, subsection (1)(b) repeals the provisions which enabled the responsible NHS body to charge the relevant local authority via a penalty notice, where a patient’s discharge from hospital had been delayed due to a failure of the local authority to arrange for a social care needs assessment, after having received an assessment and discharge notice for an individual from the relevant NHS body.
  9. Subsection (2) repeals the Community Care (Delayed Discharges etc) Act 2003, as that Act is, in effect, identical to Schedule 3 to the Care Act 2014, and should no longer have any application. The Community Care (Delayed Discharges etc) Act 2003 is therefore repealed in its entirety, as it is no longer required in England or in Wales.
  10. Subsection (3) makes relevant amendments and revocations that are required in consequence of this Act repealing section 74 of and Schedule 3 to the Care Act 2014.
  11. Subsection (4) makes relevant amendments that are required in consequence of this Act repealing the Community Care (Delayed Discharges etc) Act 2003.

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